October 16, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF C.P., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-60-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2008
Before Judges Fisher, C.L. Miniman and Baxter.
Defendant D.P. appeals from a September 10, 2007 order that terminated her parental rights to her daughter C.P., born August 29, 1999.*fn1 That order awarded guardianship of the child to the Division of Youth and Family Services (DYFS) and authorized the agency to proceed with adoption proceedings.*fn2 We affirm.
Although D.P. challenges the sufficiency of the evidence DYFS presented at trial, she also strenuously argues that her parental rights were terminated due to a "single lapse of judgment" on October 24, 2005, that does not warrant the termination of her parental rights. We frame the relevant facts with that contention in mind.
The record reveals that the October 25, 2005 removal of D.P.'s daughter, C.P., was the third occasion on which DYFS was forced to intervene and seek emergency custody of C.P. We begin our review of the record with the first removal of C.P. on the day she was born, August 29, 1999. Three weeks earlier, D.P. had been admitted to a local hospital, where she was diagnosed with psychiatric problems including adjustment disorder, anxiety and depressed mood as well as cocaine abuse. The hospital notified DYFS of D.P.'s status and when C.P. was born, DYFS immediately removed her from her mother's care. DYFS placed C.P. in foster care with B.B., her foster mother, with whom she currently resides. On September 9, 1999, DYFS filed a protective services complaint seeking legal and physical custody of C.P. A judge granted DYFS such relief.
With the child removed from her care, D.P. was ordered to attend a psychological evaluation, to continue in outpatient rehabilitation, and to have supervised visits with her daughter on a biweekly basis. After D.P. failed to attend two of three subsequent hearings between December of 1999 and May of 2000, DYFS filed a guardianship complaint on July 5, 2000.
Once the guardianship complaint was filed, D.P. changed course. She completed parenting skills classes, an anger management program, and attended NA meetings. She participated in monthly supervised visits with C.P. and obtained employment.
Recognizing that D.P.'s compliance with treatment and her employment status demonstrated considerable progress toward achieving stability, DYFS permitted D.P. longer and more frequent visits with her daughter, including overnight stays. DYFS subsidized the resulting transportation costs.
On August 1, 2001, DYFS dismissed its guardianship complaint and reinstated the protective services complaint. Custody of C.P. was returned to D.P. under the supervision of DYFS, nearly twenty-three months after the child's birth and removal from her mother's care.
Before reunification was completed, DYFS arranged for a psychological evaluation of D.P. by Santa Gregory, a psychologist. Gregory found that although D.P. had remained in compliance with the drug screens and the twelve-step substance abuse recovery program, she had ceased psychotherapy, viewing it as unnecessary, and had since developed frustration with DYFS's involvement in her relationship with her daughter.
As the summer of 2002 approached, D.P. struggled with unemployment and began collecting benefits and cash donations from her church; however, because the transition toward reunification was occurring relatively smoothly and D.P. had remained compliant with court orders, DYFS closed its file completely on September 1, 2002.
D.P.'s newfound stability did not last long. Six months later, on February 14, 2003, DYFS initiated its second emergency removal of C.P. On that date, C.P.'s godmother, H.M., notified DYFS that D.P. had left C.P. with H.M. for four days without returning or calling on the scheduled pick-up date, which was the second day of the four days in question. H.M., not knowing D.P.'s whereabouts and no longer able to care for the child, contacted DYFS. D.P. has never provided an explanation for her failure to pick up C.P. on the scheduled date.
Five days later, DYFS filed a complaint, again seeking custody of C.P. After spending a few weeks in a temporary foster home, C.P. was again placed with her original foster mother, B.B.
DYFS continued to provide services to D.P. after that second removal, including two substance abuse appointments for D.P. in May 2003. D.P. failed to attend either one, which was significant in light of having recently failed two urine screens that tested for the presence of cocaine.
Because the February 14, 2003 removal was the second time DYFS had been forced to remove C.P., DYFS was able to secure a June 11, 2003 order for an Exception to the Requirement of Reasonable Efforts to Reunify, pursuant to N.J.S.A. 30:4C-61.2, and thus was no longer obliged to provide reunification services. Notwithstanding that order, DYFS continued to provide D.P. with services, including the Options Program for substance abuse treatment, the Evergreen Program at Bergen Regional Medical Center, psychological assessments by The Audrey Hepburn Children's House and parenting skills classes. DYFS also assisted D.P. in her effort to find employment and gave her $1300 to buy new furniture.
On August 27, 2003, DYFS again filed a guardianship complaint based on D.P.'s continued substance abuse, unstable housing, lack of employment and inconsistent visitation with her daughter. Frank Dyer, who served as the principal psychology expert for DYFS at trial, was asked by DYFS to evaluate the possibility of reunification. Dyer recommended in his March 19, 2004 report that DYFS not immediately proceed with the termination of D.P.'s rights, but should instead afford her one more opportunity to demonstrate adequate parenting skills. He opined:
It appears that this is not a situation in which we have a birthparent who has so egregiously failed the child, or abandoned the child, or abused and neglect[ed] the child that there are ample grounds for terminating parental rights. This situation involves an emotionally immature, scattered, impulsive individual with some identity problems and a tendency toward depression who inappropriately left the child with a babysitter, causing the failure of a reunification after a lengthy stay in foster care. Therefore, even though it is my opinion that CP would be happier and better adjusted if she were simply allowed to remain permanently with her foster mother, the consequences of removing her from this placement are not so severe as to justify seeking a legal severance of the birthmother's parental rights in order to permit adoption by the foster mother.
However, Dyer also opined that D.P.'s psychological problems, coupled with "her history of one unsuccessful reunification with the child, warrant caution in returning the child a second time." Dyer viewed D.P. as an "attachment" figure to C.P. In contrast, he found B.B. to be C.P.'s "central attachment figure."
Consequently, DYFS, accepting Dyer's recommendation, asked the court in April 2004 to dismiss the guardianship complaint and reactivate the protective services litigation for a second time. In July 2004, D.P. was returned to her mother's custody, the case was dismissed from litigation, and on May 25, 2005, DYFS closed its file.
Prior to DYFS closing its file in May 2005, D.P. attended eleven out of fourteen counseling sessions with therapist Sean Conlon who described his sessions with D.P. as "alternat[ing] between resistive, argumentative and avoidant" and "more cooperative and receptive." Similar to Dyer's March 2004 opinion, Conlon described the foster mother as the child's primary attachment figure. He opined that "continuation of monitoring therapeutically and through the Division [in] the reunification process is essential."
Between May and October of 2005, D.P.'s progress remained satisfactory. Although she continued to struggle with employment, she was able to maintain a relatively stable environment for her daughter. In addition, as she had earlier promised, D.P. promoted contact between her daughter and the foster mother in the form of overnight visits on alternate weekends.
Unfortunately, D.P.'s progress, and the stability she had achieved after the second reunification, came to an abrupt halt on October 24, 2005, when D.P. left for the Bronx without making suitable childcare arrangements for C.P. Specifically, according to D.P., her stepdaughter called her on October 24, 2005, reporting that she and her children were very ill and requesting that D.P. come to the Bronx to take care of them. While C.P. and D.P.'s eight-year-old niece, whom D.P. was watching, were still in school, D.P. left for the Bronx. D.P. testified that she called and left a message on her neighbor Rena's answering machine, explaining that she had an emergency and asking Rena to take care of the children when they arrived home from school.
A DYFS caseworker testified that Rena denied ever receiving such a message. Rather, Rena maintained that she found C.P. and her cousin waiting outside in the rain after school on October 24, 2005, and that neither she nor the two children knew D.P.'s whereabouts. D.P. did not have a cell phone.
The trial testimony established that D.P. neither contacted the school to advise C.P. of the emergency, nor made any actual contact with her neighbor to ensure her daughter's safety until the following night. Prior to that telephone call, however, the neighbor had already notified the Saddle Brook Police that D.P. was missing and her daughter had been abandoned. The police then alerted DYFS.
D.P. did not return home until 8:00 p.m. on October 25, 2005. Upon learning of DYFS's involvement, she immediately took her daughter and placed her again in the care of B.B. DYFS permitted C.P. to remain with B.B., where she has lived ever since. In October 2005, DYFS was granted custody of C.P. by court order. In August 2006, DYFS filed its third and final guardianship complaint.
As a result of her conduct on October 24, 2005, D.P. was arrested on November 16, 2005 and charged with the crime of endangering the welfare of a child, N.J.S.A. 2C:24-4a. She pled guilty and received a sentence of three years probation. As a condition of probation, D.P. was required to maintain employment and successfully complete a substance abuse evaluation and parenting skills classes.
D.P. testified, and promised that if the court returned C.P. to her, she would never leave the child unattended again. In addition to her own testimony, D.P. presented the testimony of psychologist Paul Fulford, who had conducted a psychological examination of D.P. and administered a series of psychological tests to aid him in evaluating D.P.'s ability to parent.*fn3
Fulford reported that D.P. scored within normal range on most of the tests, but scored only a seventy-one on an IQ test, placing her in the borderline range of intellectual functioning. She also received a high score on the paranoia scale of the Minnesota Multiphasic Personality Inventory test, which Fulford attributed to anxiety resulting from the guardianship proceedings. Finally, D.P. scored in the borderline range for clinical depression on the Beck Depression Inventory test. Although Fulford found evidence of paranoia and defensiveness, and characteristics of immaturity and narcissism, he nonetheless concluded that because D.P. showed no signs of a thought or mood disorder, she was "an appropriate candidate for continuing to parent children." Fulford's sole diagnosis of D.P. was substance abuse in full remission. He opined:
Presuming drug abstinence, adequate housing, and employment, [D.P.] continues to be able to be an effective parent. She may profit from parenting classes to increase her awareness of safety risks to her child.
On cross examination, Fulford attributed the instances of abandonment to "lapse[s] in judgment" and opined that D.P. had "adequate intelligence to successfully parent." As to C.P.'s bonding with her mother and B.B., Fulford opined that the removal of the child from her foster mother in order to reunite her with D.P. for a third time would constitute another "loss" to the child, but that such a loss would be neither permanent nor traumatic "to the extent that it would overshadow any of the good." He also observed that C.P. expressed positive feelings for both her mother and B.B. Fulford recommended reunification even though he had not seen psychological reports on C.P. and was not aware of any of the details of D.P.'s history of improper supervision of her other children.
Dyer testified as DYFS's expert. Unlike Fulford and Lazara, who had seen D.P. and C.P. only once, Dyer had evaluated D.P. and her daughter on many occasions and had issued multiple reports based on tests, observations, and interviews with D.P., her daughter and the foster mother, B.B. Furthermore, Dyer explained in his April 25, 2006 report that prior to his psychological examinations of D.P. and C.P., he had reviewed documents provided by DYFS, including reports from Conlon and from Dr. Merrill Berger, who had extensive prior dealings with D.P.
Dyer, like Fulford, opined that D.P. suffers from immaturity and narcissism. Like Fulford, he acknowledged the affection C.P. has for her mother; however, Dyer's analysis parts company from that of Fulford and Lazara in a number of significant respects.
First, Dyer found D.P. has "an infantile ego structure," tending to be "preoccupied with her own inner thoughts and fantasies." He pointed to her abandonment of her daughter without assurances that C.P. was safe as evidence of an "incapacity to appreciate the needs of a young child, to place the needs of a young child above her own needs." Dyer testified that because of D.P.'s narcissism, instability and borderline level of personality organization, she was unlikely, despite all the services DYFS had provided, to ever reach "any kind of adequate parenting capacity." He also opined that if C.P. were to be reunited with her mother, the "main risk is that once nobody is looking over [D.P.]'s shoulder, . . . [she] would start to slip. And . . . this underlying personality dynamic . . . of lack of capacity to place a child's needs above her own . . . would reassert itself." He predicted that D.P. would again leave C.P. alone and C.P. would "again be back in the [DYFS] system."
Dyer's evaluation of C.P. revealed a "mildly distractible" young girl who did not know why she was living with her foster mother. When asked whether it would be a good or bad thing if she left her foster mother's home to return to her mother, C.P. replied that it would be "a bad thing." However, when asked if it would be a good or bad thing if she stayed with her foster mother, the child also responded that this would be "a bad thing," because she "would never see [her] mommy again."
In evaluating C.P.'s responses on the Children's Apperception Test, Dyer found that C.P.'s answers contained an excess of aggression. Her answers also described children being "left alone, feeling sad, and crying . . . [t]he predominate mood was sadness and a lack of understanding of why the parent left." At one point, C.P. took her cards up to a desk lamp and commented that all the animals shown on the cards were burning. Based on these findings, Dyer concluded that "the disruptions in the continuity of [her] care have taken a toll on her."
Dyer also conducted a bonding evaluation that assessed the relationship formed between D.P. and her daughter. Dyer found that D.P.'s investment in her daughter was "largely a narcissistic one." He supported that conclusion by pointing to: D.P.'s abandonment of her daughter to impulsively travel to the Bronx to care for her stepdaughter's child; D.P.'s demand that her daughter be placed with an aunt to whom the child is virtually a stranger; and D.P.'s earlier intention to place her daughter in the custody of B.B. for nine months while she joined the Reserves.
Dyer did acknowledge the affectionate bond formed between D.P. and her daughter, but also remarked on the bond formed between the child and her foster mother:
It is clear that C.P. has formed an attachment to her foster mother. She looks to her foster mother as a reliable source of nurturance, protection, emotional security, and affection. During the present bonding assessment, C.P. was observed to respond enthusiastically to her foster mother, to remain focused on her for the entire session, and to accept the foster mother's physical affect well. C.P. also addressed the foster mother as "Mommy." B.B. can be said to occupy a position of centrality in this child's emotional life, and is a very important parental love object for C.P.
As a result of his findings, Dyer opined that:
DYFS [should] no longer work with D.P. toward a reunification with C.P. There is no reasonable prospect of achieving adequate parenting capacity associated with the provision of further services for this client.
Dyer recommended adoption of C.P. by her foster mother as D.P. would not benefit from further DYFS services, and based his recommendation on D.P.'s "history of unresponsiveness to services" DYFS had already provided.
At trial, in addition to Dyer's testimony and reports, DYFS provided testimony from three other witnesses, including DYFS caseworker Julia Starace; DYFS's adoption supervisor, Anna Severino; and Jacqueline Adams, a clinician from Children's Aid and Family Services. Each corroborated Dyer's findings of the foster mother's bond with C.P. Adams testified that while making a "life book" with C.P., the child hesitated to add her mother's name in her book. Adams also reported that C.P. referred to herself as C."B.", replacing her family name with that of her foster mother's.
At the conclusion of the trial, Judge Sween, in a written opinion, ruled in favor of DYFS, finding that DYFS proved by clear and convincing evidence that: (1) D.P. has neglected C.P. and caused her substantial harm and C.P. would be at great risk if returned to her mother's custody; (2) DYFS provided services to D.P. to assist her in overcoming the causes of her neglect and she has been unable to benefit from those services; (3) DYFS made reasonable efforts to find relatives to care for C.P. as an alternative to termination of D.P.'s parental rights; (4) it was in C.P.'s best interest that her mother's parental rights be terminated to free her for adoption; and (5) termination of D.P.'s parental rights would not do more harm than good. The judge specifically noted that he found Dyer to be "far more credible" than D.P.'s expert because "[Fulford's] opinions were frequently qualified or based on hypothetical situations unrelated to the facts of this case."
On appeal, D.P. argues that she is entitled to reversal because the judge erred when he concluded that DYFS satisfied the evidentiary burden imposed by N.J.S.A. 30:4C-15.1(a).
Due to the fact-sensitive nature of family cases in general and parental rights cases in particular, the scope of our review of the findings of fact made by a trial judge is limited. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). When we review a trial judge's findings, we are obliged to accord deference to the trial court's credibility determinations and its feel of the case based upon its opportunity to see and hear the witnesses. Indeed, a trial court's findings are binding on appeal unless the findings "are so wholly unsupportable as to result in the denial of justice." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.) certif. denied, 180 N.J. 256 (2004).
Moreover, as the Court observed in In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999), we are obliged to defer to a trial court's evaluation of the credibility of expert witnesses, because "the trial court is better positioned to evaluate the witness' credibility, qualifications, and the weight to be accorded [such] testimony."
A parent's right to enjoy a relationship with his or her child is constitutionally protected. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). However, these parental rights are not absolute because the State has a parens patriae responsibility to protect minor children from serious physical or emotional harm. In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). When a child's physical or mental health is at stake, "a state is not without constitutional control over parental discretion." In re Adoption of Children by G.P.B., 161 N.J. 396, 414 (1999) (O'Hearn, J., concurring) (quoting Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 119 (1979)). In some cases, in order to protect the child, the severance of the parent-child relationship may be required. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
In a termination case, "[t]he burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). DYFS must present sufficient evidence to demonstrate that the child's "best interests" will be substantially prejudiced if the parent-child relationship is preserved. A.W., supra, 103 N.J. at 603.
New Jersey courts follow a four-part standard in a termination case, as articulated in A.W. and codified in N.J.S.A. 30:4C-15.1(a). The statute authorizes a court to terminate parental rights if DYFS proves by clear and convincing evidence that:
(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).]
These four statutory 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.
A. The first prong
The first prong of N.J.S.A. 30:4C-15.1(a) requires DYFS to prove by clear and convincing evidence that the "child's safety, health or development has been or will continue to be endangered by the parental relationship." While not explicitly conceding that this first prong of the statute has been satisfied, D.P. concedes that it is "uncontroverted, D.P. has caused harm to C.P." As Judge Sween observed, leaving for the Bronx without ensuring that her daughter would be cared for certainly endangered C.P.'s safety. Indeed, D.P.'s guilty plea to the crime of endangering the welfare of a child serves as uncontroverted proof that this first prong has been satisfied.
B. The Second Prong
D.P. argues that the trial court erred in finding that DYFS proved by clear and convincing evidence that the second prong of the statutory "best interest" standard was met. She concedes that while she has caused harm to her daughter, the record shows that she is willing and able to eliminate the future risk of this harm as well as provide a stable home environment, and that consequently, the second prong was not satisfied.
In contrast, DYFS argues that the trial court properly accepted as credible the examinations and opinions of its expert, Dyer, who opined that:
[D.P.] does not possess adequate parenting capacity, and . . . her prognosis for acquiring such capacity is extremely poor . . . . If this child returned to [D.P.], she would be placed at renewed risk of neglect, which would result in further traumatic disappointments, to the great detriment of her mental health and personality development.
Prong two requires DYFS to prove by clear and convincing evidence that 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 such permanent placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2). This prong requires an inquiry into parental unfitness. K.H.O., supra, 161 N.J. at 352. Evidence of "parental dereliction and irresponsibility" or "the withholding of parental attention and care" will satisfy that standard. Id. at 353.
In concluding that the second prong was satisfied, the judge relied heavily on the opinion of DYFS's expert, Dyer, and did so because he found Dyer's opinion "far more credible than those of [D.P.'s] expert." The judge's acceptance of Dyer's conclusion that D.P. does "not possess adequate parenting capacity," and that there is "no reasonable prospect of achieving adequate parenting capacity associated with the provision of further services," is well-supported by the record. Dyer performed four evaluations, interviewed D.P. on three separate occasions and administered extensive psychological testing. In contrast, Fulford examined D.P. only once and never examined the child or her foster mother, instead relying on Lazara's findings on the bonding evaluation.
We also agree with the judge's conclusion that Fulford's recommendation of reunification was premised upon a number of conditions that had not yet been satisfied or achieved. Under the circumstances, we accept Judge Sween's conclusion that Dyer's opinions and recommendations were more credible than Fulford's; we also accept Dyer's opinion that D.P.'s prospects of overcoming her deficiencies as a parent were poor.
In so concluding, we recognize that D.P. has tested negative for cocaine use, attended the majority of the required drug abuse sessions and parenting classes and demonstrated a strong effort to maintain secure employment. However, those efforts are insufficient to prevent prong two of the statutory "best interest" test from being satisfied. That prong requires the parent to be both "willing" and "able" to stop causing harm to the child. N.J.S.A. 30:4C-15.1(a)(2). Though D.P.'s efforts demonstrate willingness, those efforts do not prove the ability to eliminate the harm or provide a safe and stable home.
Specifically, prior to the third removal, D.P. had not been using drugs. She pursued drug treatment and had complied with court orders, which caused DYFS to proceed with reunification after the child's second removal. However, despite D.P.'s compliance with orders and her remission from drug abuse, D.P. nonetheless neglected her daughter's well-being when she went overnight to the Bronx and left her daughter unattended. If giving up the use of drugs, receiving drug abuse treatment, and attending various classes evidenced D.P.'s "ability" to stop causing harm to her daughter, then the third instance of abandonment and removal would not have occurred. Instead, the circumstances underlying this third removal are illustrative of the "narcissism" to which Dyer points. D.P.'s conduct on October 24, 2005, demonstrates an inability to eliminate harm and provide stability for the child--an inability that persists despite overcoming drug use and completing parenting classes.
D.P.'s instability and poor parenting skills have caused DYFS to remove C.P. on three occasions. Two of those removals were due to abandonment. As a result, C.P. has spent two-thirds of her life with her foster mother, B.B. The record amply supports the judge's conclusion that D.P. is unable to eliminate the harm facing her daughter.
C. The third prong
D.P. argues that DYFS failed to make reasonable efforts to provide her with the services required by the third prong. Such services must "focus on reunification of the parent with the child and [provide] assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." D.M.H., supra, 161 N.J. at 386-37. The success or failure of the efforts toward reunification is not, however, dispositive of whether DYFS met its statutory burden. N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 619 (App. Div.), certif. denied, 192 N.J. 68 (2007).
In response, DYFS and the Law Guardian argue that the court order for an exception to the requirement of reasonable efforts to reunify, issued pursuant to N.J.S.A. 30:4C-61.2 on June 11, 2003, excused DYFS from providing further services. The Law Guardian maintains that because of this court order issued after the second removal of C.P., DYFS was not obliged to renew the order at "each and every stage in a case where repetitive, failed reunification events occur[red]." In support of that argument, DYFS and the Law Guardian rely on N.J.S.A. 30:4C-11.3(a), which provides that where the rights of the parent to another of the parent's children have already been involuntarily terminated, DYFS is relieved of the obligation to provide reunification services.
After the second time DYFS removed C.P., it obtained an order permitting the cessation of reasonable efforts toward reunification. Nonetheless, as permitted by N.J.S.A. 30:4C-11.3, DYFS voluntarily pursued reunification thereafter and successfully effectuated such reunification. After the third removal, however, relying upon Dyer's opinion, DYFS provided no further reunification services. Despite DYFS's failure to obtain another N.J.S.A. 30:4C-61.2 exception order after the third removal, we find that DYFS still satisfied the third prong. We so conclude for two reasons.
First, N.J.S.A. 30:4C-11.3(c) applies here to excuse the agency from providing reunification services when the parent's rights to another child have already been terminated. DYFS's removal of D.P.'s son in 1998 and the ensuing termination of D.P.'s parental rights in 1999 satisfy the requirements of the N.J.S.A. 30:4C-11.3(c) exception.
Second, the services that DYFS most likely would have provided after the third removal are those that D.P. was already receiving as a result of her conviction for endangering the welfare of a child. Those services included parenting classes, substance abuse counseling and a drug treatment program. Providing a second set of identical services would be wasteful of the State's resources and would not have served a useful purpose.
A second portion of the third prong requires DYFS to consider alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). D.P. argues that the court failed to consider any such alternatives. We disagree. The trial court found that "[t]he Division had made reasonable efforts to find relatives to care for C.P.," but that all relatives contacted were "ruled out after Interstate Compact investigations. None appealed their being ruled out and none appeared at trial." Furthermore, accepting Dyer's opinion, the judge found that placing the child with any of these relatives, who are virtual strangers to her, would result in "the worst scenario" for C.P.
Consequently, we conclude that the trial court's findings with regard to the third prong were supported by sufficient and credible evidence.
D. The Fourth Prong
The fourth prong of N.J.S.A. 30:4C-15.1 poses the question of "whether, after considering and balancing the two relationships, the child will suffer greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. If so, parental rights must not be terminated. Ibid.
D.P. argues that the trial court erred in finding that termination of parental rights would not do more harm than good, claiming that the "court overlooked the overwhelming evidence that C.P. has a stronger bond with D.P. than she has with the foster mother." In support of that argument, she points to numerous instances in the record where C.P. expressed affection toward her mother or longed to be with her.
Recently, the Court overturned a parental termination order based on DYFS's failure to satisfy the fourth prong of the statutory "best interest" test. E.P., supra, 196 N.J. at 88. There, DYFS sought termination of parental rights between a mother and her twelve-year-old daughter who had been removed from her mother's custody for nine years, id. at 92, and had lived in a total of twelve different foster homes, id. at 95. The trial court found the statutory test had been satisfied and held in favor of termination; a panel of this court affirmed. The Court, however, found that the fourth prong of the statutory "best interests" test was not satisfied by clear and convincing evidence. Id. at 111.
The facts of E.P. differ greatly from those here. In E.P., DYFS acknowledged that finding an adoptive home for the child was extremely unlikely. Id. at 98. The child had contemplated and attempted suicide on multiple occasions, particularly when told that her mother's parental rights to her would be terminated. Id. at 95-96. In addition, the child had formed no bond with any other parental figure besides her mother, with whom she maintained telephone contact and made occasional visits. Id. at 92. As a result of all of these factors, the Court held that clear and convincing evidence did not exist to show that termination of parental rights would not cause more harm than good. The court found that "the sad reality" was that the child was "hopelessly adrift within the foster care system, and the termination of her mother's parental rights removed her one mooring - the one enduring and sustaining emotional relationship that she has had in this world." Id. at 111.
Here. C.P. has just turned nine years old. She has spent over two-thirds of her life with one foster mother, B.B., and has developed a strong bond with her. Moreover, B.B. is willing and able to adopt C.P. and recognizes that C.P.'s best opportunity for stability and lack of further disruption is with her.
D.P. cites many instances where her daughter has said she missed her mother and wanted to be with her. Indeed, the trial judge recognized that the child does have an emotional bond with D.P. The determination before the trial court, however, was comparative in nature--would the inevitable harm caused to the child by termination of D.P.'s rights be greater than the good that would result from such termination. N.J.S.A. 30:4C-15.1(a)(4). Under such analysis, C.P.'s emotional bond as evidenced by her past statements is but one factor in weighing the harms against the benefits of parental termination. See K.H.O., supra, 161 N.J. at 355. The judge must also look to stability and permanency, factors which are essential in a child's upbringing. Id. at 357-58. All of these factors play an integral role in balancing the harms. Id. at 357.
Here, the trial court found by "clear and convincing evidence that . . . termination of [D.P.'s] parental rights will not do more harm than good," because "[C.P.] has lived with B.B. for two-thirds of her life and B.B. will be able to mitigate any loss she may suffer." The judge also observed that the foster mother, B.B., had been the sole caretaker for C.P. during all three of her removals; and even during the time C.P. spent living with her mother, the foster mother continued her close relationship with the child by spending weekends and holidays with her. Judge Sween determined that despite C.P.'s statements that she would miss her mother if she were unable to resume living with her, the child's strong need for stability and permanency could best be accomplished through adoption by her foster mother. Consequently, the judge concluded that termination of D.P.'s parental rights would not do more harm than good.
Those findings are amply supported by evidence in the record: 1) although bonding evaluations conducted by both experts showed bonds between D.P. and her daughter, they also showed bonds between the child and her foster mother; 2) Dyer and DYFS caseworkers note that C.P., when in her foster mother's presence, refers to her foster mother as "Mommy"; 3) both experts agree that the child has already undergone serious trauma and future trauma could be devastating to her development; 4) Dyer opines that D.P.'s conduct has already harmed C.P. by reducing her ability to regulate anxiety and causing her to fear abandonment.
Moreover, the judge's conclusion that the risk of subsequent failed parenting by D.P. outweighed the loss C.P. would suffer if contact with her mother were to cease is supported by Dyer's opinion that another failed parenting attempt and ensuing removal would be "catastrophic" for C.P. because it would diminish her self-esteem and cause her to feel unloved and unwanted.
While C.P. will undoubtedly suffer from some degree of loss from the termination of D.P.'s parental rights, C.P. cannot and should not be expected to wait for her mother to "get herself together." C.S., supra, 367 N.J. Super. at 114. "A child is not a chattel in which a parent has an untempered property right." Id. at 110. Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement. Id. at 111. "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." Ibid.
As our opinion in C.S. makes abundantly clear, there comes a time when a child's need for permanency outweighs the parent's right to maintain a relationship with his or her child. Ibid. That time has now come. The trial court's conclusion that the evidence clearly and convincingly satisfied the fourth prong of N.J.S.A. 30:4C:15.1(a) was correct.
Affirmed. The stay pending appeal is dissolved.