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New Jersey Division of Youth and Family Services v. A.F.F.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 17, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.F.F., DEFENDANT-APPELLANT,
IN THE MATTER OF THE GUARDIANSHIP OF A.H.R. A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-59-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 25, 2009

Before Judges Axelrad, Lihotz and Messano.

Defendant A.F.F. appeals from an August 4, 2008 Family Part judgment terminating his parental rights and awarding guardianship of his child, A.H.R., to the Division of Youth and Family Services (DYFS or the Division) for the purpose of consenting to adoption. In the same proceeding, DYFS obtained a judgment terminating the parental rights of the child's mother, A.R., who has not appealed.

A.F.F. raises the following issues for our review:

POINT I

THE TRIAL COURT'S CONDUCT OF THE PROCEEDINGS DEPRIVED DEFENDANT OF A FAIR TRIAL.

A. The Trial Court Abdicated Its Responsibility to Decide Placement of A.H.R.

B. The Court Abandoned Its Role as Neutral Arbiter and Inappropriately Interjected Itself Into the Proceedings.

C. "Unfounded" Referrals Were Not Relevant, Competent Evidence and Should Not Have Been Admitted into Evidence.

POINT II

DYFS FAILED TO PROVE ALL FOUR PRONGS OF THE BEST INTEREST TEST BY CLEAR AND CONVINCING EVIDENCE.

A. DYFS failed to prove that defendant harmed A.H.R.

B. Defendant is [a]ble to provide a safe and stable home with the assistance of his grandmother, rendering termination premature.

C. The [D]ivision has not made reasonable efforts to help the parent correct the circumstances that led to the child's placement outside the home and the court has not considered alternatives to termination of parental rights.

D. A finding that termination will not do more harm than good is a self-fulfilling prophecy when the only life the child has known is the life with the foster parents.

We remain mindful that the federal and state constitutions protect the integrity of the family unit. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-59 (1972); New Jersey Div. of Youth and Fam. Servs. v. A.W., 103 N.J. 591, 599 (1986). Nevertheless, the State's role of parens patriae historically imposes a responsibility to protect the welfare of children from the probability of serious physical, emotional or psychological harm resulting from the actions or omissions of their parents. Ibid. See also N.J.S.A. 9:6-8.8a. Thus, the fundamental right of a parent to enjoy a relationship with a child is not absolute. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed. 2d 599, 606 (1982); In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999); In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

In this light, we have carefully considered the arguments raised on appeal challenging the judgment to terminate parental rights. Based upon the record and applicable legal standards, we affirm.

I.

The Division was contacted by hospital authorities on June 5, 2006, when A.H.R. tested positive for cocaine at birth. A.F.F. was present in the hospital when A.H.R. was born. From 2001 to 2005, A.F.F. and A.R. were romantically involved and resided together with their older child, A.F., Jr., born on January 16, 2001. Thereafter, they separated, but A.R. asked the hospital to contact A.F.F. when she arrived in labor.

The next day, a Division worker arrived at the hospital and spoke to A.H.R.'s parents. Initially, neither parent articulated a desire to personally care for the child. A.R. planned to place the child for private adoption with the Spence Chapin Adoption Agency and had already signed an initial placement agreement. A.F.F. lost his temper when the DYFS worker arrived and he was escorted from the hospital. He later stated he knew A.R. wanted to place the child for adoption, which he opposed, but did not know he needed to step forward to take A.H.R. home with him. The medically fragile baby remained hospitalized for two months suffering from narcotics withdrawal.

DYFS initially interceded with the family on January 15, 2003, when it learned A.F., Jr. was not properly immunized and the family residence was believed to be uninhabitable. The Division filed protective services litigation, pursuant to Title 30 with respect to A.F., Jr. DYFS caseworker Patricia Leger worked with the family and the Division extended services including: domestic violence counseling, anger management classes, Family Preservation Services (FPS), counseling at Catholic Charities, psychological evaluations, and drug treatment programs. In April 2004, the protective services litigation was dismissed, as the Division and the court were satisfied the family was stable, the parents were cooperating with offered services, and the child was safe.

A second child, A.F., was born to A.R. on December 28, 2004. A.F.F. is not the child's father, and the child is not involved in this litigation.*fn1 The Division maintained contact with the family to continue services and investigate subsequent referrals suggesting A.F.F. engaged in acts of domestic violence toward A.R. No additional litigation was commenced until A.H.R. was born.

When A.R. changed her intention to release A.H.R. for adoption, DYFS exercised an emergency removal of the child, pursuant to N.J.S.A. 9:6-8.29 and N.J.S.A. 9:6-8.30, and, on August 8, 2006, the Division filed a Title 9 complaint listing both A.R. and A.F.F. as defendants. The Division sought custody, care, and supervision of A.H.R. and care and supervision of A.F., Jr., who remained in his mother's custody, specifically conditioned on her continued participation in a drug rehabilitation and treatment program at the Children at Risk Resources Intervention Program. On August 8, 2006, A.H.R. was placed in a resource family home, where she remains.

A.F.F., although properly served with the complaint and other pleadings, did not appear at the initial hearing or the first scheduled visit with A.H.R. During this time period, he had been arrested for possession of cocaine and later incarcerated for a violation of probation. When A.F.F. was released from prison in January 2007, he moved to Pennsylvania. A.F.F.'s paternity of A.H.R. was confirmed on April 16, 2007.

In March 2007, A.R. was arrested on drug charges. A.F., Jr. was placed in the Pennsylvania home of A.F.F.'s mother and ninety-one-year-old grandmother, V.F. A.F.F. later moved into that home. On May 13, 2008, V.F. was granted physical custody of A.F., Jr.

A.F.F., accompanied by V.F., first visited A.H.R. on February 7, 2007. He subsequently visited A.H.R. on February 21, March 7, April 11, May 2, and June 5, 2007. A.F.F. requested a visit on June 20, 2007, then missed visits scheduled for September 14 and September 21, 2007. Thereafter, on October 12, 2007, the Division chose to file its complaint for guardianship of A.H.R. DYFS noted the child's resource family expressed their willingness to adopt A.H.R. were she legally free for adoption, and A.F.F. "failed to comply . . . with court ordered services such as anger management, a substance evaluation and treatment, a psychiatric evaluation and parenting skills classes." Additionally, DYFS asserted A.F.F. failed "to make a permanent plan for the child, has abandoned [the child] to the care of others, and has substantially failed to perform the regular and expected functions of care and support for the minor."

A two-day trial was held on June 19 and 20, 2008. DYFS presented testimony from its caseworker, Patricia Leger, who related the State's involvement with A.H.R. and A.R.'s other two children, and discussed the services extended to A.F.F. in an effort to achieve his reunification with A.H.R. The Division also presented its clinical psychological expert Karen D. Wells, Psy.D.,*fn2 who completed a psychological assessment of A.F.F. and performed a bonding evaluation between A.H.R. and A.F.F. DYFS introduced as exhibits, its case file from January 15, 2003 to May 27, 2008, which included the orders entered in the two previous Title 30 matters; A.H.R.'s hospitalization and other medical records; past psychological assessments and evaluations of A.F.F.; Dr. Wells' psychological evaluation of A.F.F. conducted on March 5, 2008 and her bonding assessment between parent and child; and A.F.F.'s judgments of criminal conviction. A.F.F. presented the testimony of V.F. and testified on his own behalf. He introduced no expert testimony.

Although A.F.F. participated in only eight visits since A.H.R. was born, he consistently maintained a desire to have her live with him, A.F., Jr., and V.F. at his uncle's home. Dr. Wells suggested this aspiration was not supported by her evaluation and testing, as A.F.F. had little appreciation for the day-to-day demands of parenting and did not recognize that his failure to maintain consistent visits with A.H.R. impacted his ability to have an established relationship with the child.

In assessing A.F.F.'s psychological and emotional functioning, Dr. Wells noted substance abuse was not viewed as an impediment because A.F.F. advised he last used marijuana in 2006. However, she identified A.F.F.'s inability to process anger and his low frustration level significantly impacted his parenting ability. More specifically, she stated A.F.F.'s "ability to effectively maintain control and exercise good judgment in the presence of increased anger would be limited." The results of the Millon Clinical Multiaxial Inventory-III (MCMI-III) identified concerns regarding A.F.F.'s ability to engage in interpersonal relationships, impulsivity, and the willingness to engage in risks that posed a danger to himself and others.

Overall, Dr. Wells could not endorse placing A.H.R. in her father's care because of the instability posed by his environment and personality. Dr. Wells concluded there was no support that A.F.F. possessed the emotional and psychological functioning necessary to effectively parent A.H.R. Her observations were that A.F.F. did not relate to A.H.R. as a child, but as a "passive laid back or uninvolved, disengaged" third-party.

Dr. Wells opined the objective measures raised concerns regarding A.F.F.'s "ability to . . . carry out a stable lifestyle or provide for his child" and "independently care for himself." He relies on family members for housing and for the support and care of A.F., Jr. As to his ability to parent, A.F.F. holds rigid ideas and levels of expectation regarding children's behavior, such as, a child never should talk back or misbehave. Were a child to violate these behavior beliefs, A.F.F.'s frustration would be elevated possibly triggering uncontrolled anger. A.F.F. did not demonstrate any hostile or belligerent behaviors during the evaluation and was cooperative. Nevertheless, Dr. Wells recommended clinical therapeutic treatment to address these anger issues and counseling to learn interpersonal relationship skills.

In evaluating whether a bond developed between the twenty-two-month-old A.H.R. and A.F.F., Dr. Wells found none. Her observations were A.F.F. was not engaging and did not initiate interaction with the child, he waited until the child came to him with toys to play with or snacks to eat. He demonstrated no understanding of the developmental needs of the child, was not verbal and did not encourage the child's speech. Although A.F.F. was patient with A.H.R. and the child demonstrated a sense of familiarity with him, he was not animated and displayed only limited affection. A.H.R. had no difficulty separating from A.F.F.

The Division caseworkers' testimony centered on A.H.R's foster care situation, stating the child "is very loved by the family," which includes two siblings, one of whom was adopted. The resource parents have repeatedly confirmed their desire to adopt A.H.R. The resource parents "give her confidence and make her feel proud about herself. And at the same time when she does something wrong, they correct it, but then they always hug her and tell her they love her."

Additionally, the workers observed the interactions between A.F.F. and A.H.R. during the limited visits. Initially, the visits were cut short by A.F.F. and there was little interaction between parent and child. However, in more recent visits A.F.F. and A.H.R. "played the entire visit."

A.F.F. testified, confirming his desire to raise his child. He stated:

I fathered [A.H.R.] and it's my responsibility to take care of [the child]. It's a family and that's really why I stayed with [A.R.] as long as I did because [A.F., Jr.] and [A.H.R.] and I were a family. And I say, it's over because it was time for me to be responsible.

I want to . . . see [A.H.R.] grow up.

A.F.F. explained his past difficulty in meeting the afternoon visitation schedule, while complying with employment obligations, was due to the fact that DYFS office was in New Jersey and he worked in Pennsylvania. A.F.F. stated he was fired from one job because he took the day off to see A.H.R. He did not dispute he had participated in a total of twelve visits with the child and completed eight of the twelve parenting classes.

V.F., age ninety-one, a former chemist and teacher, raised four children and took care of A.F.F. after his mother died. She has been caring for A.F., Jr. since 2006. She testified that she advanced a request for custody of A.H.R. V.F. testified: "I felt that I wanted the child, would be happy with the child and I thought she could be happy with me. We live in a big house where there's plenty of space."

V.F. explained A.F.F. helps with the care of A.F., Jr., the child has "bonded with A.F.F. very well" and he "generally has a nice relationship with young [A.F., Jr.]." Additionally, A.F.F. helps his son with his homework and they go for bike rides together. A.F.F. helps purchase food and clothing for A.F., Jr. and contributes monthly payments as rent.

At the close of testimony, the trial court judge explained he was "not satisfied with the testimony [he had] heard with regard to the current situation with the child, via the foster parents" to address the fourth prong of the "best interest" test. Judgment was reserved pending an expert evaluation explaining the emotional attachment between A.H.R. and her resource family. A.F.F. was permitted to obtain an expert evaluation.

Trial resumed on August 4, 2008. Melissa Rivera Marano, Psy.D., testified for the Division. Dr. Marano performed a psychological bonding evaluation on June 6, 2008, between A.H.R. and the resource parents. Dr. Marano noted A.H.R. referred to the foster mother as "Ma Ma" and the foster father as "Da Da." The child views the foster family as her family and the foster parents as her psychological parents, as they provide security and stability for the child. Dr. Marano concluded the quality of interaction between the foster parents and A.H.R. was indicative of a strong positive attachment.

Dr. Marano opined removing A.H.R. from the resource family, her "psychological parents," in order to reunify her with A.F.F., would have a significant longstanding impact on A.H.R., which would affect her both behaviorally and developmentally. Dr. Marano predicted removal would likely cause the child to experience a "spike in aggression or acting out behavior in her way of responding to the change." The length of any impact would depend on the effectiveness of A.F.F. in responding to her needs. Dr. Marano supported permanency for A.H.R. by allowing the resource family to adopt.

A.F.F. offered no expert testimony. He presented no additional evidence.

The trial judge rendered an oral opinion at the close of testimony. Crediting the conclusions of Drs. Wells and Marano, he determined the State satisfied each prong of the "best interests" test by clear and convincing evidence and ordered the termination of A.F.F.'s parental rights to free A.H.R. for adoption.

II.

Our Legislature has recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). In other words, when applying for guardianship, DYFS is required to institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Fam. Servs. v. K.M., 136 N.J. 546, 557 (1994). The best interests standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish each of the following by clear and convincing evidence before parental rights may be severed:

(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).]

See K.M., supra, 136 N.J. at 557; In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); In re Guardianship of J.C., 129 N.J. 1, 10 (1992); A.W., supra, 103 N.J. 591, 611-12 (1986).

These requirements are not discrete, but overlap to provide a composite picture of what may be necessary to advance the best interests of the child. New Jersey Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 280 (2007); Division of Youth & Fam. Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). The considerations involved in determining parental fitness are extremely fact sensitive and require particularized evidence that addresses the specific circumstances present in each case. K.H.O., supra, 161 N.J. at 346-48.

The scope of our review is a limited one. We must defer to a trial judge's findings of fact if supported by clear and convincing evidence in the record. New Jersey Div. of Youth and Fam. Servs. v. P.P, 180 N.J. 494, 511 (2004); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). Particular deference is afforded to decisions on issues of credibility because that judge had a "feel of the case" and the opportunity to observe the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); see also Division of Youth & Fam. Servs. v. M.M., 382 N.J. Super. 264, 271 (App. Div.), certif. granted, 186 N.J. 606 (2006).

Yet, "where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (internal quotations omitted). In such a case, if the trial court's findings are "so wide of the mark that a mistake must have been made," they are not entitled to our deference. C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989) (internal quotations omitted). Additionally, we note the trial judge's legal conclusions and application of those conclusions to the facts, are subject to our plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). With these standards in mind, we proceed with our analysis.

III.

A.F.F.'s first argument suggests the court "abdicated its responsibility to decide placement of A.H.R." He contends because V.F. sought custody of the child in August 2007, and DYFS declined to consider her request, the court erred in not placing the child with his grandmother as opposed to terminating his parental rights.

We reject the notion that V.F.'s trial testimony was sufficient to warrant a change in the child's placement. First, but for her trial testimony, no evidence of V.F.'s claimed custody filing was presented. V.F. appeared at prior hearings, however, nothing suggests she sought custody of A.H.R., as well as A.F., Jr. Second, other than a visit on February 7, 2007, and one over one year later in March 2008, there is no documented contact between V.F. and A.H.R. Third, a challenge to the child's placement and a request that she be placed with V.F. appears not to have been raised by A.F.F. prior to trial. In fact, the record reflects on May 20, 2008, almost a year following V.F.'s asserted custody filing, a DYFS caseworker spoke with A.F.F. to inquire whether relatives were available to care for A.H.R., and A.F.F. reported his family would rather have the child returned to his custody.

A.F.F.'s reliance on our decision in In re Guardianship of C.R., 364 N.J. Super. 263 (App. Div. 2003), certif. denied, 179 N.J. 369 (2004), to support his challenge is misplaced. In C.R., we reviewed the denial of a resource family's request for placement of a newly born child whose siblings were members of the family. Id. at 266. "The sole basis for refusing to place [the child] in their care was violation of the Division's population limitation policy, as embodied in the Division's 'Field Operations Casework Policy and Procedures Manual' (Manual). Section 1502.1b[.]" Id. at 269. The resource family had already been determined fit and capable of caring for foster children. Ibid. The conflict was whether the administrative agency or the Family Part should review the Division's decision to rule out a placement. Id. at 278.

The facts at bar are readily distinguishable. V.F. filed no court request for placement or custody before the Family Part or the Child Placement Review Board responsible for reviewing the Division's proposed permanency plan for A.H.R. The Division's decision of placement was not based on an administrative policy, but an assessment of A.H.R.'s needs and best interests.

It is very clear that A.H.R.'s needs differ from those of her brother. V.F. competently cares for A.F., Jr. He is eight years old, attends school and is somewhat independent. However, V.F. has not demonstrated that at her advanced age she could additionally provide the primary care needs of an active two-year old, who requires constant supervision. The suggestion A.H.R. should be placed with A.F., Jr. also is unpersuasive. We do not disagree with the proposition that a child's rights to maintain a relationship with a sibling should be considered when DYFS makes a placement evaluation. However, that issue is not solely determinative of a child's best interests. Moreover, the issue was not raised below by either A.F.F. or V.F., and we will not consider it now. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

The remaining arguments raised under this point lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However we present these brief comments.

Our review discloses no evidence to support a contention the court abrogated its paramount responsibility "to preserve judicial neutrality and objectivity[.]" New Jersey Div. of Youth and Fam. Servs. v. J.Y., 352 N.J. Super. 245, 266 (App. Div. 2002). Also, we reject any suggestion of prejudice and conclude, following our review of the record, the trial was fair and unbiased.

Additionally, we reject the argument challenging as error the admission into evidence of the Division's records of unfounded referrals, the Division's involvement with the family prior to A.H.R.'s birth, and the Division's past involvement with A.R. and A.F.F. R. 5:12-4(d). The history provides context for the circumstances necessitating DYFS's intervention. The past records identified A.F.F.'s anger management issues, which remained unresolved.

"[P]roof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the responsibility of, the parent or guardian . . . ." N.J.S.A. 9:6-8.46; see J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.) ("[p]redictions as to probable future conduct can only be based upon past performance" and "[e]vidence of parents' fitness or unfitness can be gleaned not only from their past treatment of the child in question but also from the quality of care given to other children in their custody"), certif. denied, 77 N.J. 490 (1978).

In summary, our review discloses no error or abuse of discretion in the admission of evidence or the other trial determinations. We conclude A.F.F. receive a fair trial and was afforded ample opportunity to present factual evidence, including expert testimony, if he so chose, in support of his position.

We turn to the second point presented on appeal. Our review of this record compels us to conclude the evidence supports the trial court's decision that the State has met all four prongs of the best interests test by clear and convincing evidence as they pertain to A.H.R. A detailed discussion of each prong follows.

A. The First Prong

Under the first prong of the best-interests standard, "the harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352; N.J.S.A. 30:4C-15.1(a)(1). Contrary to the arguments advanced by A.F.F., physical harm is not the sine qua non of endangerment; our Supreme Court has recognized the potential for emotional injury can be a crucial factor. Ibid. 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." Ses v. Baber, 74 N.J. 201, 222 (1977). The attention and concern of a caring family is "the most precious of all resources." A.W., supra, 103 N.J. at 613. A parent's withdrawal of that solicitude, nurture, and care for an extended period is, in and of itself, a harm that endangers the health and development of the child. K.H.O., supra, 161 N.J. at 352-54.

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. New Jersey Div. of Youth and Fam. Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) certif. denied, 180 N.J. 456 (2004). In response to the reforms resulting from the Federal Adoption and Safe Families Act of 1997,*fn3 "[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Ibid. "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.

The record supports the judge's findings that A.F.F. has never performed the functions of a parent with respect to A.H.R. and further, by his admission, continues to allow V.F. to provide the day-to-day care for his older son. Dr. Wells testified A.F.F. was not prepared to independently assume custody of the child and relied on others to assume the necessary responsibilities. Also, he lacked awareness of the child's developmental needs and the affect wrought by his minimal involvement since birth. A.F.F.'s failure to provide nurture and care for this extended period is "a harm that endangers the health and development" of A.H.R., and the delay in his assumption of the responsibilities of parenting has allowed A.H.R. to form a psychological bond to her resource parents. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). A further delay in providing a permanent placement for the child will add to that harm. N.J.S.A. 30:4C-15.1(a)(2).

Thus, A.F.F. has been unable, unavailable or unwilling to perform the regular and expected functions of care and support of his child, unquestionably satisfying the first prong. N.J.S.A. 3B:12A-6d(1).

B. The Second Prong

The second prong examines whether it is "reasonably foreseeable the parent[] can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607; N.J.S.A. 30:4C-15.1(a)(2). This prong may be satisfied by the parent's "inability to provide a stable and protective home, [or] the withholding of parental attention and care . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This prong focuses and overlaps with the proofs supporting the first prong. D.M.H., supra, 161 N.J. at 378-79 (1999).

Despite the passage of ample time, A.F.F. has not advanced in the ability to provide care for A.H.R. He did not complete parenting classes; his visits showed limited awareness of the basic needs of a two-year old; he neglected to bring any items to the visits; he fed the child donuts and ice tea; and remained somewhat passive and detached in his visits. Further, A.F.F. has not militated his anger issues and admitted at trial that he yells and loses his temper when frustrated. The Division's records include evidence of past instances of corporal punishment of A.F., Jr.

Generally, A.F.F. has not advanced his parental care of A.F, Jr., despite living with the child. The "treadmill time" of daily parenting was left for V.F. Accordingly, the judge's conclusion that A.F.F.'s inability to parent A.H.R. would not change in the foreseeable future finds strong support in the record. Based on the clear and convincing evidence, we determine the totality of efforts offered by DYFS over several years could not successfully achieve reunification. See D.M.H., supra, 161 N.J. at 393.

A.F.F. argues, although he may not have been ready to assume primary care of the child, DYFS should have allowed the child to be placed in his uncle's home and he, with V.F.'s assistance, would provide care for A.H.R. We disagree.

Acceptance of A.F.F.'s argument requires consideration of his parenting ability, as buttressed by V.F.'s primary care of A.H.R. "A child is not chattel in which a parent has an untempered property right." C.S., supra, 367 N.J. Super. at 110. A.F.F. must demonstrate his ability to provide more than a place for the child to live. He must be able to provide the basic needs of parenting including, nurture, security, safety and basic care. Instead, he demonstrated exceedingly limited ability or interest in basic parenting. Even with respect to his son, he did not shoulder the day-to-day responsibilities. Viewing the past as prologue, A.F.F. failed to demonstrate his level of parental involvement would change. He has not overcome the deficits necessitating A.H.R.'s continued foster placement.*fn4

C. The Third Prong

The third prong requires DYFS to make reasonable efforts to provide services to help the parent correct the circumstances necessitating removal and placement of the child in foster case. N.J.S.A. 30:4C-15.1(a)(3); see K.H.O., supra, 161 N.J. at 354. Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390.

Although he availed himself of some services provided by the Division, A.F.F.'s participation was sporadic and reluctant, rather than meaningful, with an eye toward independently assuming the primary care of A.H.R. At the time of trial, he had not completed parenting classes, could not show he could provide accommodations for the child (even within his uncle's home), and had not satisfactorily attended scheduled visitations. A.F.F. had a past history of substance abuse and was requested to complete an educational program; he enrolled, but did not complete the program. DYFS recommended and scheduled a psychiatric appointment to determine whether medication would aid A.F.F.'s anger and impulsivity disorders; he did not keep the appointment.

We are also satisfied DYFS sufficiently explored other placement alternatives with relatives. Specifically: (1) an Interstate evaluation with a paternal aunt, M.A., in Pennsylvania was arranged, but M.A. was ruled out when she did not return the telephone calls by the Division and then expressed she reconsidered and was not interested in caring for A.H.R.; (2) A.R. offered her mother be considered, but later withdrew that request, explaining her mother was a "drunk" that "has problems"; and (3) the Division submitted an Interstate request for the home of P.F. and D.F., A.H.R.'s paternal uncle and aunt who owned the Pennsylvania residence. However Monroe County Children and Youth Services Agency reported the proposed caretakers accepted correspondence but would not otherwise contact the agency or attend training. Other evidence shows a rejection by these relatives to allow A.H.R. to reside in their home. We conclude this prong was satisfied.

D. The Fourth Prong

The last prong of the best interests standard, focuses on the overriding consideration of a child's need for permanency and stability. K.H.O., supra, 161 N.J. at 357. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. Ibid.; see also A.W., supra, 103 N.J. at 607-09. The court inquires into the child's bond with both biological and foster parents. "[A]fter considering and balancing the two relationships," the question becomes will "the child[] suffer a 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.

New Jersey's courts have long recognized the need for permanency in circumstances such as those presented in the present case. K.H.O., supra, 161 N.J. at 357-58; D.M.H., supra, 161 N.J. at 385. As the result of the enactment of the Federal Adoption and Safe Families Act of 1997, 42 U.S.C.A. §§ 301, 671(16) and 675(5)A)(ii) and of amendments to N.J.S.A. 30:4C-15, [t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditions, permanent placement to promote the child's well-being. 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. [C.S., supra, 367 N.J. Super. at 111 (citations omitted).]

By trial, A.F.F. was not in a position to provide a secure and stable home for A.H.R. and did not demonstrate he could achieve these goals within a reasonable time thereafter. The State additionally adduced testimony from two "well qualified expert[s] who . . . had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship" with the natural and foster parents. J.C., supra, 129 N.J. at 19. The testimony was unrefuted: A.H.R. had no bond with A.F.F. and had developed a very significant dependence and psychological bond with her resource parents. The foster parents are the only caregivers A.H.R. has known. The child's separation from them will be longstanding and severe.

The Division's efforts to reunite A.F.F. and A.H.R. failed. A.H.R.'s best interests require the child remain in the permanent, safe, and stable home of the resource parents and A.F.F.'s parental rights be severed to allow the child to be adopted by the foster parents who have unequivocally become her psychological parents. In re Guardianship of K.L.F., 129 N.J. 32, 43-44 (1992); C.S., supra, 367 N.J. Super. at 110.

Affirmed.


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