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New Jersey Division of Youth and Family Services v. I.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 19, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
I.H., DEFENDANT-APPELLANT,
IN THE MATTER OF THE GUARDIANSHIP OF A.H., JR. AND C.H., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-121-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 10, 2008

Before Judges Carchman and R. B. Coleman.

Defendant I.H. ("defendant" or "I.H.") appeals from a November 14, 2007 judgment of the Chancery Division, Family Part terminating her parental rights to her sons A.H., Jr. and C.H.*fn1

We conclude that there was sufficient evidence to support the trial court's decision and that defendant received a fair trial and proper assistance of counsel. Accordingly, we affirm.

We briefly set forth the relevant facts. Plaintiff Division of Youth and Family Services ("DYFS" or "the Division") first became involved with I.H. in 2000, when she was still a minor. On January 27, 2000, the Division received a referral from I.H.'s mother, requesting that I.H. be removed from the home because of her "out-of-control behavior." This first encounter would presage consistent conduct confirming I.H.'s history of mental illness, suicide attempts and ideations, multiple placements in treatment facilities and poor compliance with psychotropic medication.

A psychiatric evaluation completed on February 9, 2002, revealed that, at age ten, I.H. had disclosed to a school counselor that she had been sexually abused by her father when she was seven years old. After she made the allegation, her behavior worsened, including increased defiant behavior, accompanied by crying spells and suicidal ideations.

At age twelve, she was diagnosed with major depression, post-traumatic stress disorder and borderline personality traits resulting in several psychiatric hospitalizations. She was prescribed multiple types of medication, without a positive result, probably due to her non-compliance. She presented a history of physical violence towards her mother and, in August 2003, she reportedly threatened her mother with a knife. Later that same month, I.H. and her stepfather engaged in a physical altercation over the television remote control, resulting in I.H. needing eight stitches in her leg and her stepfather being charged with criminal abuse.

In September 2003, I.H. submitted to a psychiatric evaluation and was diagnosed with major depression, impulse-control disorder, and parent-child relational problems. She admitted to having difficulties with anger-management.

On June 21, 2004, I.H., who was then eighteen years old, gave birth to A.H. at Newark Beth Israel Medical Center, in Newark.

The father of the child is defendant A.H., Sr*fn2 . Within two months, on August 22, 2004, the Division received a referral from the Irvington Police Department reporting that I.H. had appeared at the police station with her two-month-old child stating that her mother made her leave the house, and she had no place to go. Apparently, her mother had "thrown her out" for non-compliance with her medicine regime. She resided unsuccessfully at A.H., Sr's house but was told to leave there as well. On the day she came to the police station, I.H. signed an informed consent for a fifteen-day placement of A.H. with her mother.

DYFS moved quickly, and on September 10, 2004, it filed a Verified Complaint and Order to Show Cause obtaining custody of the child after a finding that "the removal of the child [was] necessary to avoid an ongoing risk to life, safety or health of the child . . . because the parents [did] not have a stable living arrangement."

In March 2005, while pregnant with her second child, defendant was once again homeless. She was referred to shelters, to a clinic for prenatal care and to counseling services. A psychiatric evaluation followed as well as a placement in Covenant House, a residential facility, with plans for a future transfer to the Raphael Life House, where she would be able to reside with A.H. and her second child*fn3 once a plan for reunification could be developed.

A representative of the Raphael Life House, Rolidel Hormazabal, met with I.H. and a Division worker, Victoria Kelly, regarding her application for a bed at the facility. Ms. Hormazabal explained that, to be eligible, I.H. had to fill out an application, and once at the facility, agree to take psychotropic medication as prescribed by their doctor. I.H. became angry and left without completing the application. A similar circumstance arose at Covenant House where, due to her extreme anger problems, she was asked to leave. A month later she was informed that she would not be accepted at the Raphael Life House.

On April 8, 2005, the Division worker contacted Beth Israel Hospital and was informed that I.H. had attended two prenatal appointments. The worker also spoke with Dr. Prabhavathi Gude, the examining psychiatrist, who informed the worker that a recent evaluation was consistent with previous diagnosis of oppositional defiant disorder and borderline features. The Division later determined that I.H. had never attended the clinic for counseling.

I.H. gave birth to her second child, C.H., on April 24, 2005. The hospital social worker informed the Division of the child's birth and reported that I.H. has a history of bi-polar disorder. In response to an inquiry from a DYFS caseworker,

I.H. denied having been diagnosed with bi-polar disorder and stated that, as per her doctor's advice, she did not need to be on medication.

DYFS removed C.H. without court order, N.J.S.A. 9:6-8.29 to 30. On April 27, 2005, the Division filed an Amended Order to Show Cause and Verified Complaint and secured an order placing C.H. in the care, custody and supervision of the Division. The judge found that removal was "necessary to avoid an ongoing risk to life, safety or health of the child . . . because of allegation [that] . . . the mother suffers from mental illness." The judge also ordered that if I.H. is accepted to the Raphael Life House, C.H. could stay there with her.

Defendant, accompanied by a caseworker and police, returned to Raphael Life House, where she met with Ms. Rolidel. While meeting with Ms. Rolidel, I.H. indicated that she did not need medication and would not take any. Ms. Rolidel informed I.H. that taking prescribed medication was a condition to staying at the facility. I.H. refused to accept such condition, and DYFS provided I.H. with a list of shelters.

Meanwhile, I.H.'s mother requested immediate removal of the children from her home and on June 1, 2005, the children were placed with I.H.'s paternal grandmother, G.D., who made it clear that she could not care for them long-term.

Securing defendant's compliance with a court-ordered psychiatric evaluation proved problematic. I.H., at first, consented to be examined by Dr. Alexander Iofin, but she soon withdrew her consent to allow the Division and Dr. Iofin access to her medical records. She did, however, allow Dr. Iofin to contact her mother, which he did in I.H.'s presence, reporting her observations of I.H.'s symptoms in the affective range, including depression and changes in her mood, difficulties with self-control, and decreased attention and concentration. I.H. responded by denying any psychiatric symptoms.

In addition to his interview with I.H., Dr. Iofin conducted tests and considered I.H.'s available psychiatric history, including suicide attempts, multiple psychiatric hospitalizations and residential placements, as well as aggressive and manipulative behavior. He concluded that I.H.'s insight is limited as to the "gravity of her condition." In addition, I.H.'s tests suggested a diagnosis of bi-polar disorder, not otherwise specified, and provisional schizoaffective disorder. He opined that I.H. is within "a fairly small group of individuals who have a significant amount of psychiatric problems in a combination of Affective, Anxiety and Psychotic problems," and that the number of psychiatric hospitalization from a young age is significant. He further opined that although now she is better functioning, in that she does not need inpatient care, her functioning is nonetheless marginal. This is evidenced by her related qualification for Social Security Disability benefits, "which means she was proven to fit the very tight and restricted assessment of her mental health functioning by the federal government." He concluded that her volatile presentation during their meeting, her lack of understanding of her need for treatment and her refusal to take medication, point to diminished chances that her functioning will improve and to a "grave danger" that she will decompensate. He recommended psychotropic medication.

A group meeting with DYFS and all of the critical persons, including the children, proved unsuccessful as I.H.'s behavior escalated to screaming and cursing. Despite the facilitator's efforts to calm her down, I.H. eventually got up and moved quickly towards the caseworker with her fists clenched, screaming, "You're a liar. This ain't over. I'm gonna get you outside and you're gonna be sorry bitch. I'm gonna get my kids back you fucking liar."

On September 30, 2005, a permanency hearing was held, and the judge approved the Division's permanent plan of termination of parental rights with adoption of A.H. by his current caretaker. The judge found that "it [was] not and will not be safe to return the child[] home in the foreseeable future because [I.H.] ha[d] not addressed [her] psychiatric issues." He also found that the Division had provided reasonable efforts to finalize the permanent plan including "referrals [for] psychiatric evaluation, visitation, [and] family group conference."

In April 2006, I.H. submitted to a psychiatric and biopsychosocial assessment at Mt. Carmel Guild. I.H. admitted to having a history of psychiatric treatment from age seven through fourteen, which she attributed to having been sexually abused by her father, and admitted to three suicide attempts. She denied having any current problems, other than depression resulting from the removal of her children. The evaluator determined that I.H. had a defensive posture, an evasive and guarded attitude, angry mood, fair judgment and poor insight. The evaluator concluded that "[I.H.]'s information was unreliable due to her coming to treatment under coercion from DYFS," and her "prognosis is guarded due to her lack [of] motivation for treatment." I.H. expressed that she did not intend to return for treatment after this required evaluation and her court date at the end of the month. She diagnosed I.H. with chronic adjustment disorder and recommended individual therapy.

At the April 2006 permanency hearing, the judge accepted the Division's plan of termination of parental rights followed by relative adoption. He concluded that the return of the children to I.H. was unlikely to occur in the foreseeable future because I.H. had not remediated her psychiatric issues.

Another psychiatric examination ensued as I.H. was examined by Dr. Karen Henningson, at the Mt. Carmel Guild. Dr. Henningson diagnosed I.H. with depressive disorder, not otherwise specified, and recommended that she continue individual therapy.

In April 2006, the Division filed an Amended Order to Show Cause and a complaint for the guardianship of A.H. and C.H.

On May 4, 2006, I.H. submitted to a psychological evaluation by Dr. Mark Singer, a psychologist. Dr. Singer concluded that I.H. is an "angry individual who has difficulties dealing with children, and others, when frustrated." The test data suggested that I.H. has a Narcissistic Personality Disorder. Dr. Singer further concluded that "[h]er personality features are likely to significantly limit her ability to acknowledge and respond to the needs of others, including her children." During this evaluation, I.H. disclosed that she allowed her father, who sexually abused her, to have contact with her children, as she believed he would not hurt them.

On the same date, Dr. Singer conducted a bonding evaluation between the children and I.H. Dr. Singer concluded that, intellectually, A.H. recognizes I.H. as his mother, but his behavior shows that although he has developed an attachment to I.H., it is not of one "consistent with that commonly observed between a securely attached child and parental attachment figure." He opined that "[A.H.]'s behavior suggest that [he] is somewhat ambivalent in his attachment to his mother, suggesting that he views his mother as being part of his life but not a consistent figure in his life." As for C.H., Dr. Singer concluded that, consistent with his age, he recognized I.H. as a familiar figure in his life, although there was no evidence of a secure mutual bond. According to Dr. Singer, since C.H. never lived with I.H., "it [was] unlikely that a healthy emotional bond ha[d] developed."

Dr. Singer concluded, "within a reasonable degree of psychological certainty," that I.H. was not capable of parenting her children at that time. He noted that she lacks the necessary emotional and physical resources. Although I.H. "has had time to make improvements in her life, the data suggest that she has been unable to do so and, based on her history, she is unlikely to make significant improvements in the near future." According to Dr. Singer, that is "consistent with the test data suggesting narcissism and the inability to respond effectively to the needs of others."

He further concluded, "within a reasonable degree of psychological certainty," that "neither child is likely to experience a significant and enduring reaction if their relationship with their mother were to be severed." Regarding A.H., Dr. Singer opined that "[w]hile [he] may experience a reaction to the loss of his mother, his level of ambivalence within the relationship and the presence of any other attachment figure is likely to mitigate any impact that severing the . . . relationship would have." As for C.H., Dr. Singer concluded that he "has not developed any significant, even ambivalent attachment to [I.H.]," and he is "likely to experience less adverse reaction than his brother would experience."

On October 23, 2006, J.K., a paternal relative of the children, applied for adoption of A.H., C.H. and I.H.'s third child, with whom I.H. was pregnant at the time. The Division evaluated and approved J.K.'s home, residence of J.K. and his wife, S.K. This was an appropriate placement, especially since it was difficult for G.D. to care for the children. J.K. confirmed his commitment in a letter to the Division indicating his commitment to adopting all three of I.H.'s children.

Trial commenced, and after hearing expert testimony, Judge Callahan took the "very unusual step" of continuing the case for a "reasonable period," ordering the Division to schedule psychiatric evaluations and a series of services for I.H., as well as requiring both parties to provide the treating psychiatrist with all previous evaluations. He also ordered that he was to receive progress reports and that supervised visitation was to continue.

On December 6, 2006, Dr. Evan Christodoulou from Family Connections, evaluated I.H. and diagnosed her with adjustment disorder with depressed mood. He recommended that she receive individual therapy, family therapy and parenting classes and noted that I.H. was not presenting any acute psychiatric symptoms.

The Division arranged for I.H. to attend a parenting-skills course at Reunity House and to receive weekly therapy and visits with the children. On December 20, I.H. gave birth to her third child, N.H. The Division placed a hospital hold.

On January 17, 2007, Judge Callahan dismissed the guardianship complaint and returned the matter to protective status to provide services to I.H. He ordered the Division to work with I.H.'s mother and G.D. to establish a transition plan for placement of A.H. and C.H. with the maternal grandmother.

Visitations were problematic. First, I.H., threatened to kill her mother and the caseworker and complained that one of the children had not been brought to visitation. More significantly, the caseworker was informed by the visitation facilitator that I.H. had missed all of her visits with the children since mid-November and had been terminated from the program.

That pattern continued as on February 9, 2007, Reunity House informed the Division that I.H. missed her first visit with her three children. On March 1, 2007, Reunity House reported that I.H. had not attended (1) any of her scheduled visits with her children, (2) parenting classes, which began on December 14, 2006, (3) her weekly therapy sessions, and (4) her two intake appointments for anger management.

From March 2, 2007 through August 13, 2007, I.H. attended four out of twenty-five family visits and eight out of twenty-three parenting-skills classes. Reunity House reported that when I.H. did attend the visits, she met the children's physical needs, was aware of their routines and behavior, and the children were comfortable with her;*fn4 however, because of I.H.'s lack of participation, the clinician was unable to assess I.H.'s progress towards reunification.

On June 8, 2007, the Family Service Bureau of Newark informed the Division that I.H. had missed all four intake appointments for their anger-management program. After her fourth missed appointment, the Family Service Bureau scheduled on last appointment, which I.H. missed. As a result, no additional appointments were scheduled.

A commitment by I.H.'s mother to adopt the children was short-lived as on August 2, 2007, she sent a letter to the Division requesting that all three children be removed from her care, "due to life threatening phone calls" she had received. She acknowledged that this request would result in her being ruled out as a possible adoptive parent. She recommended that the children be placed with J.K. and his wife S.K. DYFS confirmed that plan, and on August 8, 2007, the Division placed all three children with J.K. and S.K.

On October 9, 2007, Dr. Singer conducted a bonding evaluation between the three children and J.K. and S.K. J.K. reiterated his commitment to adopting the children and stated that he would permit I.H. to have supervised contact.

Dr. Singer concluded that A.H. and C.H. view J.K. and S.K. as their central parental figures and that their behavior was "consistent with those commonly observed between securely attached children and parental attachment figures." Both children refer to J.K. and S.K. as "mommy" and "daddy." He concluded, "within a reasonable degree of psychological certainty" that A.H. and C.H. would experience significant and enduring harm should their relationship with their psychological parents be severed."

On November 14, 2007, a year after the first guardianship trial, a second guardianship trial was held before Judge Callahan. Based on the testimony and evidence presented, the judge found by clear and convincing evidence that the Division had met its burden. He terminated I.H.'s parental rights to A.H. and C.H.

In a detailed opinion, the judge found that DYFS had established the four prongs required under N.J.S.A. 30:4C-15.1(a)(1)-(4). The judge made a detailed chronological finding of the history of the case, and determined that the first and second prong are satisfied by this history, which is evidence of the potential for harm and of I.H.'s inability to eliminate the harm and provide a safe and stable home for her children. He determined that the Division "more than met" the third prong with the "rendition of services that [it] attempted if not provided."

The judge determined the fourth prong was also satisfied. He indicated it was satisfied with respect to Dr. Singer's evaluations in 2006, and with his recent efforts to see I.H. again for an update, although "she refused to keep such appointments." The judge found that the children were having a "sound life" with their current caretakers, that the grandmother's language in her letter, the third time she asked the children to be removed from her care, was "strong and clear" that she wanted them removed because of some threatening phone calls and that she understood "the children [would] be placed and [she] [would] be ruled out as a possible adoptive parent." In addition the judge noted that trial was not about the grandmother's rights and that any harm factor related to the termination of the maternal grandmother is outweighed by permanency for these children. He entered a judgment granting guardianship to the Division.

On appeal, defendant argues:

POINT I THE TRIAL COURT'S DECISION TERMINATING THE PARENTAL RIGHTS OF I.H. TO THE MINOR, A.H., JR. AND C.H. WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND SHOULD BE REVERSED.

A. There Was No Clear And Convincing Evidence That A.H., Jr. And C.H.'S Health And Development Have Been Or Will Be Endangered By Their Parental Relationship With I.H.

B. I.H. Did Not Harm Her Children And Is Able And Willing To Provide A Safe And Stable Home For Them.

C. DYFS Failed To Make Reasonable Efforts To Reunify I.H. With Her Children And Failed To Consider Alternatives To Termination.

D. Termination Of I.H.'S Parental Rights Will Do More Harm Than Good.

Point II THE INFORMALITY OF THE TRIAL PROCEEDINGS VIOLATED THE PRINCIPLES SET FORTH IN J.Y. THUS DENYING I.H. DUE PROCESS. POINT III I.H. WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

Before addressing defendant's arguments, we restate basic principles informing our analysis. "Parents have a fundamental constitutional right to raise their children." N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002) (citations omitted). However, such right is not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Rather, parental rights are "tempered by the State's parens partiae responsibility to protect the welfare of children." Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The "best interest of the child" standard governs this balance and has been codified in N.J.S.A. 30:4C-15.1. Ibid. A court can terminate parental rights when the Division shows 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 right will not do more harm than good. [N.J.S.A. 30:4C-15.1(a)(1)-(4).]

These "four 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 interest." K.H.O., supra, 161 N.J. at 348.

Termination of parental rights is a significant State action in that it permanently severs "the relationship between children and their biological parents." J.C., supra, 129 N.J. at 10. Thus, when biological parents oppose the termination of parental rights, "the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." Ibid. The consideration involved in this inquiry is "extremely fact sensitive and require[s] particularized evidence that address the specific circumstances in the given cases." K.H.O., supra, 161 N.J. at 348 (internal quotations and citations omitted).

Notably, the best interests standard is applied in light of "New Jersey's strong public policy in favor of permanency." Id. at 357. Accordingly, "[i]n all . . . guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." Ibid. (citations omitted). In other words, "[t]he Division must demonstrate that the parent is 'unable to eliminate the harm facing the child or is unable . . . to provide a safe and stable home for the child,' . . . before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001) (quoting N.J.S.A. 30:4C-15.1(a)(2); citing J.C., supra, 129 N.J. at 10).

We address defendant's specific claims and focus on prong one. I.H. contends that "there was no clear and convincing evidence that [the children's] health and development have been or will be endangered by their parental relationship with I.H." Specifically, she contends that "DYFS presented no evidence whatsoever as to how I.H. had harmed her sons or might possibly do so in the future." We disagree.

For the first prong of the best interests standard, a judge must consider the harm that arises from the child-parent relationship. K.H.O., supra, 161 N.J. at 348. In this context, harm refers to "the endangerment of the child's health and development resulting from the parental relationship," and it may constitute one egregious harm or "the effect of harms" over time. Ibid. It also includes the risk for future harm. A.G., supra, 344 N.J. Super. at 440 (citing N.J.S.A. 30:4C-15.1(a)).

Accordingly, a judge need not have to wait "until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citations omitted). Indeed, "[t]he absence of physical abuse or neglect is not conclusive on the issue of custody. The trial judge must consider the potential for serious psychological damage to the child inferential from the proofs." In re Guardianship of R.G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977) (citing Sorentino v. Family & Children's Soc'y of Elizabeth, 72 N.J. 127, 131-132 (1976)).

What dominates this case is not physical harm generated by defendant's conduct but an inadequacy of parenting stemming from her mental illness or limitations of her personality. When this occurs, there might be an "absence of any moral culpability or fault on [her] part." Ibid. However, N.J.S.A. 30:4C-15(c) speaks to the "best interests of any child," which relates to the environment to which the child would be returned, and "not simply the presence or absence of culpable fault on the parents' part." Id. at 194-95. Where there is risk of harm whatever the source, courts have intervened to act in the best interests of the child.

Both in A.G., supra, and in R.G., supra, we addressed the issue of circumstances where the parents' mental disorders "adversely affect[ed] their ability to parent." A.G., supra, 344 N.J. Super. at 439. In both A.G. and R.G., the children had not been harmed, "nor [was] there any evidence to show that they would intentionally harm the child. But that is not the test." A.G., supra, 344 N.J. Super. at 440 (affirming termination of parental rights where child was placed at birth and parents had no meaningful opportunity to show their ability to parent).

We reached a similar result in In re Guardianship of A.A.M., 268 N.J. Super. 533 (App. Div. 1993), where the mother had a "troubled history and . . . emotional, psychological and behavioral problems." Id. at 544. There, we held there were sufficient grounds to terminate parental rights even though the mother "never had a real opportunity to exercise a parental role, and there is no proof that she inflicted the type of harm contemplated [in some other cases]," since the child was removed at four days old. Id. at 549-550. Our conclusion was dominated by the mother's history of being "unstable, violent, self-centered, undisciplined and lacking in insight," as displayed by her inability to comply with service provided and repeatedly being terminated from programs. Id. at 550. In A.A.M., we found that the mother's "uncontrollable behavior harmed the relationship with A.A.M. by preventing it from progressing further." Id. at 547.

Here, I.H. has a long history of mental heath issues, non-compliance with psychotropic medication and aggressive behavior, which led to her termination in several programs. In addition,

I.H. failed to consistently receive any kind of therapy, and to attend parenting classes and anger-management. Dr. Singer opined that "[I.H.] is an angry individual who has difficulties dealing with children, and others, when frustrated," and she is not capable of parenting her children. This is the harm we acknowledged in A.G. and A.A.M.

In addition, a child's unfulfilled need for a permanent home is a harm in itself. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super 582, 591-92 (App. Div. 1996). When the second trial was held, A.H. and C.H. were three and one-half and two and one-half years old, respectively. In their entire lives, they had not yet experienced a stable living arrangement and a consistent relationship with I.H.

I.H.'s inability to get along with others and to control her behavior eliminated opportunities for her to reunite with her children. The chances for reunification increased when, at the first guardianship trial, the judge gave her an additional year to acquire stability. However, despite the many services offered to her, she showed no significant compliance, continued to display poor ability to control her behavior, failed to obtain stable living arrangements and had times when she could not provide food for herself.

By clear and convincing evidence, the record supports the conclusion that I.H. harmed her children by (1) failing to provide them with a stable and nurturing home and (2) failing to mitigate her psychiatric issues and behavioral problems.

As to the second prong, we are satisfied that DYFS established by clear and convincing evidence that defendant is unable to eliminate the harm that endangered the child and is further unable to provide a safe and stable home. K.H.O., supra, 161 N.J. at 352.

The premise of I.H.'s argument is that she offered a plan to provide a stable home for the children by placing them with her mother, including their adoption by her mother, should reunification fail. We reject the argument. First, the children were placed with her mother twice and both times her mother requested the Division to remove the children from her care; and second, her contemplation of a final plan for permanency "should reunification fail" prolongs the timeframe for permanency indefinitely.

"Keeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law." A.G., supra, 344 N.J. Super. at 438 (citing In re P.S., 315 N.J. Super. 91, 121 (App. Div. 1998)). Both federal and state law acknowledge "the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child." N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. den., 180 N.J. 456 (2004). As federal and state public policy increasingly focused on a child's need for permanency, the emphasis "shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Ibid. That is because "[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.

In A.A.M., supra, we concluded that the mother's "inability to control her behavior in any meaningful way, which ha[d] continued for years after A.A.M.'s birth, clearly show[ed] that she lack[ed] the ability to eliminate that harm." 268 N.J. Super. at 547. Similarly, I.H. had almost three and one-half years to show that she could provide residential and emotional stability for her children. Yet, she has been unable to demonstrate positive change and implicitly concedes that she is unable to provide a home for the children.

In addition to the lack of a stable home, as Dr. Singer opined, (1) I.H. lacks the necessary emotional and physical resources; (2) although she "had time to make improvements in her life, the data suggest that she has been unable to do so and, based on her history, is unlikely to make significant improvements in the near future;" and (3) that is "consistent with the test data suggesting narcissism and the inability to respond effectively to the needs of others." This opinion validates the finding under prong two, and we see nothing in the record that suggests that this opinion, offered before the first guardianship trial, is no longer valid or worthy of consideration.

We, likewise, reject defendant's argument as to the third prong. DYFS offered substantial services to assist defendant in an attempt to not only foster reunification, but "to correct and overcome those circumstances that necessitated the placement of the child." K.H.O., supra, 161 N.J. at 354. Here, the Division offered numerous services to I.H., including visitation with her children, multiple psychiatric and psychological evaluations, therapy with multiple providers, parenting-skill classes, anger-management therapy, Medicaid, bus passes, and a list of shelters and groceries. The Law Guardian contends that these services were appropriate to address I.H.'s mental health issues. The record demonstrates that the services were, in some instances, rejected or defendant's conduct was so disruptive that continuation in the various programs became problematic. While many of the problems are attributable to defendant's limitations, we cannot fault DYFS for any alleged failure to provide services.

We, likewise, reject defendant's claim that the removal of the children from her mother's care precluded the possibility of Kinship Legal Guardianship. N.J.S.A. 3B:12A-1 to -7. We note that the mother requested removal but more important, where a caretaker wishes to adopt, kinship legal guardianship is not available. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508 (2004). J.K. and S.K.'s willingness to adopt precluded consideration of kinship legal guardianship.

In considering the fourth prong of the best interests standard, we probe "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. In this regard, Dr. Singer's opinion is persuasive.

As we previously noted, Dr. Singer concluded that, intellectually, A.H. recognizes I.H. as his mother, but he is "somewhat ambivalent in his attachment to [her], suggesting that he views his mother as being part of his life but not a consistent figure in his life." Similarly, C.H. recognized I.H. as a familiar figure in his life, although there was no evidence of a secure mutual bond. Dr. Singer concluded, "within a reasonable degree of psychological certainty," that "neither child is likely to experience a significant and enduring reaction if their relationship with their mother were to be severed."

As for the children's bonding to J.K. and S.K., Dr. Singer concluded that the children view J.K. and S.K. as their central parental figures and show a secure attachment. He concluded, "within a reasonable degree of psychological certainty" that A.H. and C.H. would experience significant and enduring harm should their relationship with their psychological parents be severed." Significantly, "[i]t has been recognized that the psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood."

R.G., supra, 155 N.J. Super. at 194 (quoting Sees v. Baber, 74 N.J. 201 (1977)); see also In re G.P.B., Jr., 161 N.J. 396, 407 (1999) (noting a meaningful distinction between a child recognizing a person as a "procreator" and as someone "who acts like a parent"). We are satisfied that the Division met the fourth prong of the best-interest test by clear and convincing evidence.

We reject defendant's assertion that the trial proceedings violated the principles enunciated in N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245 (App. Div. 2002), and deprived defendant of due process. Specifically, defendant alludes to the trial judge not requiring direct testimony from Dr. Singer but simply proceeding with cross-examination. While we do not endorse the cited practice as the norm, defendant was not prejudiced by moving directly to cross-examination. Counsel was unfettered in the ability to question the witness, and we perceive no prejudice to defendant. In all other respects, we see no similarity between this trial and the proscriptions enunciated in J.Y.

Lastly, we reject without further comment defendant's claim that she received ineffective assistance of counsel. R. 2:11-3(e)(2). Counsel represented her effectively and competently.

We recognize that the difficulty in this case is that this termination proceeding is premised not on physical abuse of children but the inability of defendant to adequately provide for the children because of mental health limitations. Nevertheless, our polestar is the best interests of the children, and to that end, DYFS established, by clear and convincing evidence, that the children's best interests would be served by termination of I.H.'s parental rights. We agree.

Affirmed.


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