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New Jersey Division of Youth and Family Services v. R.V.


May 11, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-112-07.

Per curiam.



Argued April 1, 2009

Before Judges Stern, Waugh and Ashrafi.

Defendant mother R.V. appeals from the decision of the Family Part terminating her parental rights to her son, L.C.*fn1 We affirm.


L.C. was born prematurely on September 22, 2000. The Division of Youth and Family Services (DYFS) was notified by the hospital because R.V. was homeless. After finding that R.V. was receiving assistance from the Bergen County Board of Social Services, DYFS decided not to open a case for investigation at that time.

DYFS's next contact with the family came in February 2003, after receiving a referral through the Dumont Police Department. A referent had called police "to report seeing a woman striking a small child on his back in the back seat of her vehicle." The police forwarded the referral to DYFS.

DYFS made contact with R.V., who admitted to "slapping the child because he [] was 'out of control.'" R.V. stated a woman nearby had criticized her for hitting L.C.; so she told the woman to "go fuck herself." R.V. described L.C. as a "spoiled little shit," who "behaves badly on a regular basis." R.V. stated that she had spoken with L.C.'s pediatrician about his behavior, but was told his behavior was not necessarily indicative of a medical problem. R.V. informed the DYFS worker that she was unemployed. In her report, the DYFS worker suggested that the L.C. get a developmental workup and that the mother should be re-visited at her home. Abuse was not substantiated against R.V. because she "did not cause injury to the child and child made no disclosure."

On October 25, 2005, an anonymous referent informed DYFS that R.V. was neglecting L.C. The referent stated that R.V. "uses crack cocaine and gets high in front of [L.C.]" and would leave L.C. with her roommate for two to three days at a time so that she could "get high." The referent had visited the family's house early in October and reported "dirty dishes sitting in the sink for three months, clothes all around, plates of food on the table and cat feces throughout." The referent was also concerned that L.C. "may be slow because of his mother's drug use during her pregnancy."

The next day, October 26, 2005, two DYFS workers went to R.V.'s home to follow up on the referral. The workers reported the home to be hazardous and deplorable. Clothes, toys, dirty dishes in the sink and in the tub, plates of food all over the home, what appeared to be stuffing from a toy scattered about the home, fruit flies were flying about the home, extension cords, unknown where they were leading to, and the home smelled of body odor.

The apartment had one bedroom with two beds. L.C.'s bed was "broken and unusable"; so L.C. and R.V. shared a bed. Two men were in the residence; one did not identify himself. The other, S.W., reported that he would care for L.C. on occasion and slept there four to five nights a week. R.V. also informed DYFS that L.C. had not been to school for several days because he was undergoing testing because of possible developmental delays. According to R.V., L.C. had speech and learning disabilities, was "half-blind" in his left eye, and "both of his feet turn in."

R.V. reported that L.C.'s biological father was incarcerated, most likely in Florida. She informed the DYFS workers that she is taking medication for depression, anxiety, panic attacks, and Post-Traumatic Stress Disorder. [R.V.] report[ed] that she is Bipolar and [] takes the following medications: Prozac, Klonopin, Zyprexa, and Trazodone for her depression and anxiety. . . . [R.V.] report[ed] that she has hepatitis C. . . . Worker asked [R.V.] how her home became deplorable. [R.V.] reported, "I'm lazy and tired from my medications." [R.V.] report[ed] that she supports her son by [Temporary Assistance for Needy Families] and food stamps.

R.V. voluntarily submitted to a urine screen; S.W. refused. R.V. admitted to using cocaine two to three days earlier. Her urine screen came back positive for cocaine use.

DYFS substantiated neglect because of R.V.'s admitted use of cocaine while caring for L.C. and removed L.C. the same day. The hazardous and deplorable condition of the home was also cited as support for removal. According to DYFS, R.V. signed a "Dodd letter"*fn2 acknowledging that L.C. was being removed from her care without a court order. L.C. was placed in a foster home.

On October 28, 2005, DYFS filed an order to show cause requesting custody, care, and supervision of L.C. The same day, the trial court granted DYFS's application. Also on October 28, 2005, R.V. submitted to a court ordered drug screen which came back positive for cocaine use.

A DYFS caseworker contacted L.C.'s optometrist on October 28, 2005, to discuss his possible vision problems. The receptionist informed DYFS that L.C. was last seen on June 2, 2005, when he was referred to a specialist for surgery. There was no indication whether R.V. had followed through with the referral. The receptionist also reported that, despite numerous messages left for R.V., she had failed to pick up L.C.'s new glasses.

The Audrey Hepburn Children's House conducted a learning assessment of L.C. on November 10, 2005. The assessor concluded that L.C.'s academic readiness skills are scattered for a child his age, ranging from the average range to the very delayed range. [L.C.]'s knowledge of basic concepts such as colors, letters, and numbers, is very delayed for a child his age. Additional concerns include [L.C.]'s delays in speech/language development, his fine motor skills, and his marked weakness in attention/concentration.

R.V. attended a substance abuse assessment at Preferred Children's Services on November 15, 2005. R.V., who was forty-one at the time, stated that she was introduced to cocaine at thirty by her friends and started smoking crack-cocaine when she was thirty-eight or thirty-nine. Following the assessment, it was recommended that R.V. engage in a "partial hospitalization MICA [Mentally Ill Chemical Abuser] program."

On November 17, 2005, the return date of the order to show cause, the trial judge granted DYFS continued custody of L.C. He also ordered R.V. to attend psychological evaluations and substance abuse treatments in addition to submitting to random urine screenings. R.V. was granted supervised visitation with L.C. DYFS was also ordered to explore the possibility of arranging for telephone contact between R.V. and L.C. The same day, R.V. voluntarily waived her right to a fact finding hearing and stipulated that she had used cocaine on October 23, 2005, while L.C. "was in her care, placing him at risk of harm."

On December 7, 2005, an individualized education program was prepared for L.C. by the Passaic Board of Education. The report stated that L.C.'s "cognitive skills tested lower than expected due to significant behavioral interference oppositionality." Further, L.C. "appear[ed] to have fine motor and visual motor difficulties. [L.C.'s] cognitive profile coupled with his low tolerance for frustration may impact on his progress at school." L.C. was referred to occupational therapy, speech therapy, and counseling. He was categorized as eligible for special education because of his multiple disabilities including both learning and emotional disabilities.

R.V. enrolled in the Bergen Regional Medical Center's MICA program on December 15, 2005. She relapsed on December 25, 2005, and January 1, 2006. The program reported on February 13, 2006, that R.V. had been tested "almost daily" since her last relapse and all her urine screens had been negative. The program also reported that R.V. was "compliant with the rules of the program. Her attendance has been good. . . . She has been punctual to her groups and has been an active participant in groups."

DYFS was informed by a worker at the visitation program that R.V. had to cancel her visitation with L.C. on February 6, 2006, because she had been imprisoned. The worker also told DYFS that on one occasion L.C. had come to a visitation session with a cold. The worker noted that R.V. "won't blow [L.C.]'s nose during visitations" and that "it seems like the mother has no control over [L.C.]."

DYFS was informed by the Bergen County jail on February 10, 2006, that R.V. had been previously charged with failure to give a controlled dangerous substance to the police and driving with a suspended license. She was incarcerated because she had failed to pay the fines associated with the above charges. R.V. was released the same day on her own recognizance. Because of her incarceration, R.V. was discharged from her MICA program. Upon her release from jail, R.V. reapplied for and was readmitted to the MICA program on March 30, 2006.

On May 1 and May 8, 2006, Dr. Kenneth Schulman conducted a psychological evaluation of R.V. Dr. Schulman concluded that R.V. is experiencing psychological difficulties mild to moderate intensity and that her functioning is consistent with psychoactive substance abuse in remission and with Axis II designations of Histronic Personality with Obsessive Compulsive and Narcissistic Personality Features. It is recommended that [R.V.] complete the program in which she is participating and that she demonstrates compliance with all recommendations including those for aftercare, should there be any. Psychotherapy is recommended over and beyond the substance abuse treatment and should focus on identifying inefficient coping mechanism that trigger relapse as well as on resolving issues that remain from a psychologically chaotic and abusive background.

It is the examiner's opinion that [R.V.]'s visits with [L.C.] can be liberally increased as long as she remains substance free and as long as she remains complaint with all treatment recommendations.

R.V. received a psychiatric evaluation on May 21, 2006, at the Hackensack University Medical Center from Dr. Ramakrishna Gudapati. He diagnosed R.V. with major depressive disorder and obsessive compulsive disorder, in addition to noting her history of cocaine dependency. Dr. Gudapati reported that R.V.'s "thought process was logical and goal directed, no paranoia/delusions, no evidence of psychosis at present."

On July 11, 2006, R.V. provided DYFS with the names of L.C.'s godparents as individuals who might be able to supervise increased visitations with L.C. DYFS also investigated the godmother as a possible placement option for L.C. The godmother stated, however, that she could not care for L.C. because she had three small children of her own.

On July 14, 2006, DYFS received a letter from Children's Aid and Family Services, Inc., memorializing R.V.'s completion of a parenting skills program. She had attended nine of the twelve sessions. On July 27, 2006, DYFS received a letter from the MICA program noting that R.V. had completed the program on June 6, 2006, with a referral to individual counseling. R.V. was described as being very cooperative and reported to have made consistent efforts to participate in group sessions. Additionally, R.V.'s random drug screenings had all returned negative for cocaine use.

On October 26, 2006, the trial court approved a permanency order that set reunification of L.C. with R.V. as the appropriate and acceptable plan. DYFS was ordered to provide the family with services to work towards transitioning L.C. from foster care back to his mother's custody.

In November 2006, R.V. began overnight unsupervised visitations with L.C. Initially, the visits went well.

However, on at least one occasion, R.V. did not administer L.C.'s nebulizer treatments as evidenced by the fact she returned the medication unused to the foster mother. Additionally, R.V. did not make L.C. complete his homework during their visits. The overnight visitations were suspended in early January 2007 because R.V. had been released by her individual therapists for failure to attend appointments.

On January 5, 2007, a DYFS worker visited R.V. at home. R.V. answered the door wearing only a t-shirt. R.V. "was wearing no underwear and appeared to be distorted." She informed the caseworker that she "wasn't doing well." The caseworker told her that she needed to have a urine screen that day. R.V. told the worker she would meet her at the DYFS office to compete the urine screen but never appeared for the screen.

R.V. failed to attend a substance abuse evaluation on February 2, 2007. Later that same day, during a visitation session with L.C., a DYFS caseworker noted that R.V. was acting "irrationally [and] using bad language while [L.C.] was in the room." The session was stopped due to R.V.'s behavior. A urine sample taken from R.V. that day tested positive for cocaine.

On February 6, 2007, a new permanency order was issued by the trial court setting termination of parental rights as the appropriate and acceptable plan. R.V.'s noncompliance with therapy and positive urine screens were cited as the reasons for changing the permanency plan. Additionally, the trial judge drew negative inferences from R.V.'s failure to submit to urine screens on January 1, January 25, January 29, and January 30, 2007. Additionally, R.V.'s telephone contact with L.C. was suspended because she had been calling the foster home at inappropriate times, crying and yelling at the foster mother.

R.V. was re-enrolled in the Bergen Regional Medical Center MICA program on March 29, 2007. Prior thereto, R.V. had moved to Toms River and was residing with her fiancé, P.T. R.V. completed the MICA program on May 15, 2007. It was recommended that R.V. seek individual therapy as well as continue in Narcotics Anonymous. R.V. enrolled in individual therapy on June 5, 2007.

DYFS filed for guardianship of L.C. on April 3, 2007.

Dr. Zisalo Wancier performed a psychiatric evaluation of R.V. on June 13, 2007. Dr. Wancier diagnosed R.V. with major depressive disorder and personality disorder (NOS), but ruled out bipolar disorder.

On July 18, 2007, R.V. called the DYFS office to cancel her visitation with L.C. on the following day. According to R.V., she had a large abscess on her leg and had developed cellulitis. She said she was disoriented because the doctor had prescribed narcotics to dull the pain. This was confirmed by R.V.'s individual counselor, who had been provided a list of medications prescribed to R.V. at the time. On July 23, 2007, R.V.'s counselor told DYFS that all of her drug screenings since entering the program in June had been negative.

At a visitation session on August 2, 2007, R.V. greeted L.C. by asking him, "What the fuck do you have on your feet?" R.V. then became angry when the visitation aide would not allow the visit to take place in the parking lot so that L.C. could play with the two dogs R.V. had brought with her. She made disparaging comments about the aide and DYFS. Subsequent visitation sessions were appropriate and R.V. interacted well with L.C.

A DYFS caseworker informed R.V. on September 6, 2007, that the compliance review had to be postponed because a possible address had been found for L.C.'s father and DYFS needed to attempt to serve him with the guardianship papers. R.V. became very upset and said that the father was a "very angry person and a very dangerous man." She worried that he would "come to find her and will kill her." She also told the worker that she believed he had fled the country.

On September 10, 2007, a bonding evaluation was conducted by Dr. Natalie M. Barone between L.C., R.V., and R.V.'s fiancé, P.T. In her report, Dr. Barone noted that during the session, R.V. "demonstrated poor boundaries and was quite intrusive with [L.C.]" Throughout the session, R.V. accused L.C.'s foster mother of stealing from him and taking the toys and clothes that she bought him. At one point, R.V. noticed a rash on L.C.'s stomach. R.V. pulled his shirt up, told him to stand still, and started taking pictures of his stomach. At this point, L.C. exclaimed: "Stop! You're scaring me." R.V. continued to take pictures.*fn3

In her report, Dr. Barone discussed the behavioral delays discovered when L.C. was removed from his mother. She theorized that:

[s]ome of [L.C.]'s emotional problems and development delays were likely due to the neglect that he endured while in the care of [R.V.] during his first five years of life. Given [L.C.]'s special needs, he requires a more sophisticated degree of caretaking and skill on the part of his parental figure.

[L.C.] needs a caregiver who is emotionally stable and who can provide and model a psychologically sound lifestyle. [L.C.] needs a reliable caregiver who is committed to his welfare and who has the capacity to place his needs before their own. I have strong reservations about [R.V.]'s ability to meet any of the above mentioned parental requirements.

Dr. Barone concluded that R.V. was not fit to parent L.C., and that this would be the case even if L.C. was a "'normal' child without special needs." She believed that L.C. had only an "insecure and ambivalent" attachment to R.V. and his reaction to losing her in his life would be "transient." "Moreover, his recovery from this loss can be expedited by the development of a new relationship with competent and emotionally stable adoptive parents that [L.C.] so desperately deserves."

Dr. Barone conducted a psychological evaluation of R.V. on September 17, 2007. In her report, prepared February 28, 2008, Dr. Barone stated:

This examiner is aware of relatively recent positive reports from [R.V.]'s outpatient substance abuse treatment program (Comprehensive Behavioral Healthcare, Inc., 10/4/07). However, significant concerns remain. [R.V.] greatly minimizes and even denies much of her substance abuse history. . . .

This type of current denial undermines the legitimacy of reported treatment gains made by [R.V.]. . . .

[R.V.]'s behavioral history in combination with her current clinical presentation strongly suggests a severe level of mental illness. [R.V.] meets diagnostic criteria for Borderline Personality Disorder. Moreover, significant red flags were raised for Bipolar Disorder, or at the very least, Bipolar II Disorder. . . . Data obtained through the current evaluation, both documentation and observations, are replete with examples of [R.V.]'s impulsivity, inappropriate anger, poor boundaries, unstable mood, obsessive ruminations, paranoid distortions, narcissism, and other classic manifestations of Borderline Personality Disorder.

[R.V.] has a very low frustration tolerance and is easily angered to a point of rage. She lacks the internal coping resources that most individuals possess to contend with the daily stresses of life. As such, when faced with even the slightest amount of stress, or discomfort, [R.V.] overreacts. With larger amounts of stress (e.g., caring for a young child), [R.V.] will likely decompensate. . . .

At a compliance review on October 5, 2007, R.V. informed the court that the foster mother had agreed to allow her visitation with L.C. whenever she wanted. The DYFS caseworker denied that the foster mother allowed R.V. to visit with L.C. outside of scheduled visitations. Additionally, R.V. accused the foster mother of not taking care of L.C. and not allowing him to wear the clothes that R.V. purchased for him. According to the foster mother, R.V. was purchasing clothes one or two sizes too small for L.C.

On October 9, 2007, the foster mother informed a worker that she could no longer take R.V.'s "abuse." R.V. was calling the foster home and "raging" at the foster mother. R.V. "called her and wanted extended weekend visitation with her son without DYFS knowing about it." When the foster mother refused this request, R.V. told L.C. that he was going to be removed from his foster home, which resulted in L.C. becoming very upset and crying. The foster mother stated that if that type of behavior continued, she would, "with pain in her heart," ask that L.C. be removed from her care.

Dr. Barone performed a psychological evaluation of L.C. on February 11, 2008. When asked about his mother, L.C. responded that: "She buys me toys." When probed further, he stated "I don't know anything else." He reported that R.V. used to hit him when he lived with her. He did state, when pressed, that he would like to live with his mother. Dr. Barone concluded that L.C. was emotionally avoidant and "evidencing both blatant sadness as well as occasional aggressiveness." She strongly recommended that L.C. start therapeutic services immediately.

On February 29, 2008, R.V. revealed to a DYFS worker that she had brought another individual's urine in once for a drug screening. She stated her purpose was to prove that DYFS was using other individual's urine to produce positive results for cocaine use.

Comprehensive Behavioral Healthcare, Inc., sent DYFS a letter on March 12, 2008, to inform them that R.V. had been substance free since her relapse in February 2007. She was attending multiple Narcotics Anonymous meetings a week and had good communication with her sponsor.

Dr. Peter H. Schild performed a bonding evaluation between L.C. and R.V. on March 20, 2008. He reported: During the session their interaction was natural, spontaneous and affectionate.

[L.C.]'s immaturity was obvious, and when he showed frustration or was demanding, [R.V.] reacted largely appropriately to keep him on track. . . .

. . . [R.V.] was supportive, if not a little overeager of her son's efforts. Her language with [L.C.] was age appropriate and when he got fidgety or frustrated her responses were made in an appropriate tone of voice with appropriately corrective suggestions. In sum, they were well bonded.

Dr. Schild also performed an individual psychological evaluation of R.V. He concluded:

[R.V.]'s affective presentation was somewhat mixed. . . . She evidenced some rapid movement from a serious even bland demeanor to a hyper-excited expressiveness, to tears, as she recalled aspects of situations which may have called for differentiated feelings.

These changes were not necessarily inappropriate but there was some dramatization which seemed excessive. There were no gross indicators of a clinical depression or of a major anxiety disorder.

On April 24, 2008, during a scheduled visit, L.C. and R.V. were both informed that L.C. would be leaving his foster home and moving to a "pre-adoptive" home.*fn4 L.C.'s then current foster mother recommended to DYFS that R.V. should not be permitted to call the new foster home because, whenever R.V. and L.C. spoke on the phone, L.C. "regresse[d] and start[ed] his misbehaviors to the point that he start[ed] cursing and yelling."

During the visitation session on April 24, 2008, R.V. again denied that her son had any allergies. She told the DYFS worker the next day she had surreptitiously given L.C. peanut butter cookies during the visit and that he was fine. The worker informed R.V. that after the visit, the foster mother had to give L.C. Benadryl to calm an allergic reaction.

L.C. was moved to his pre-adoptive home on April 28, 2008. He was still in that home at the time of trial. We have not been notified of any change in residence.

Comprehensive Behavioral Healthcare, Inc. reported in a letter dated April 30, 2008, that R.V. had been drug free since her last relapse in February 2007. R.V. was compliant with all counseling, therapy, urine screening, and psychiatric appointments. R.V.'s prognosis was considered good.

The guardianship trial commenced on May 5, 2008. Dr. Barone's testimony was consistent with the information contained in her written reports. Dr. Barone added: "I feel compelled to start out by saying that I've really conducted hundreds of these bonding evaluations in my career and, quite honestly, this was one of the most uncomfortable and inappropriate sessions that I have ever witnessed." She reached this conclusion because of "poor boundaries, inappropriate language, utter hysteria on [R.V.]'s part." Dr. Barone concluded that, although L.C. would suffer short-term emotional repercussions from the termination of R.V.'s parental rights, his need for permanency was so great that termination of parental rights was in his best interest.

Three DYFS caseworkers testified, primarily recounting the facts set forth above. The current caseworker testified that L.C. was doing well in his pre-adoptive home, noting the openness of the foster parents to getting him the special services he required.

P.T., R.V.'s fiancé, testified to his intention to help R.V. raise L.C. He testified that he had not seen R.V. use any illegal substance nor had he noticed any adverse behavioral changes.

Dr. Schild testified for the defense, primarily relating the observations and conclusions contained in his earlier reports. He acknowledged that R.V. was not currently able to parent a small child, but disagreed with Dr. Barone's ultimate conclusion that R.V. would never be able to parent L.C. effectively. However, he was unable to predict when R.V. would progress to the point that she would be able to parent effectively.

R.V. also called a transportation aide who testified to the positive interaction between R.V. and L.C. at their scheduled visits. She stated that L.C. was very affectionate towards his mother. On cross-examination, the aide recounted her first interaction with R.V., during which she swore at the aide in front of L.C. because she would not allow R.V. to take L.C. outside.

R.V. testified on her own behalf. She admitted to using cocaine at the time L.C. was removed. However, she testified that she had been caring for L.C.'s special needs by having him evaluated at Hackensack University and working with the school to provide him extra help through a teacher's aide. She also stated that L.C. was seeing a speech therapist prior to removal.

R.V. testified about her current active involvement with Narcotics Anonymous. She also testified about her concerns regarding the care provided to L.C. while in foster care. She again refused to acknowledge that her son had allergies to peanut butter and apples.

The trial judge issued a written decision on June 16, 2008, finding DYFS had satisfied the four prongs of the best interest standard, N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence, and terminating R.V.'s parental rights. R.V.'s subsequent request for visitation pending appeal was denied. R.V. filed her appeal on July 23, 2008.


R.V. raises the following points on appeal:











We address each point in turn.


In his written opinion the trial judge provided a brief recitation of the facts of the case, quoting extensively from the findings of Dr. Barone. The trial judge then stated:

The evidence is clear and convincing that

(1) [R.V.] neglected [L.C.] causing him harm and that he would suffer great harm if he were returned to [R.V.]'s custody . . .; (2) [DYFS] offered and provided services to [R.V.] to assist her in overcoming the causes of her neglect and she has been unable to do so; (3) [DYFS] made reasonable efforts to find relatives to care for [L.C.]; (4) [L.C.]'s best interests will be served by terminating his parents' parental rights to free him for adoption; and (5) termination of their parental rights will not do [L.C.] more harm than good.

R.V. argues that the trial judge's factual decision fails to meet the requirements of Rule 1:7-4(a). She suggests that the trial judge's "inadequate findings preclude an appellate court from fairly reviewing the judgment in question."

Rule 1:7-4(a) requires the trial court to "find the facts and state its conclusions of law thereon in all actions tried without a jury." The Supreme Court has further defined this obligation:

In a non jury civil action, the role of the trial court at the conclusion of the trial is to find the facts and state conclusions of law. Failure to perform that duty "constitutes a disservice to the litigants, the attorneys and the appellate court."

Naked conclusions do not satisfy the purpose of Rule 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions. [Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (citations omitted).]

We agree with R.V. to the extent that we believe the trial judge's findings and conclusions could have been more detailed, but we do not agree that they failed to meet the requirements of Rule 1:7-4(a). Under ordinary circumstances, we would have been inclined to remand the case to the trial judge to allow him to expand on his decision. However, because the trial judge is not available to develop his opinion more fully on remand, we are unable to do so. In addition, we note that there were a limited number of factual disputes at trial, other than the different opinions expressed by the experts, as to whom the trial judge made credibility findings. After a careful and searching review of the record, we conclude that the trial judge's findings and conclusions are amply supported by the record.*fn5


Parents have a constitutionally protected right to maintain a relationship with their children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed. 2d 551, 558-59 (1972)). "Parental rights are not absolute, however. The State has a responsibility to protect the welfare of children and may terminate parental rights if the child is at risk of serious physical or emotional harm." New Jersey Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted).

It is well established that when seeking the termination of parental rights under N.J.S.A. 30:4C-15.1(a), DYFS has the burden of establishing, by clear and convincing evidence, the following criteria:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) [DYFS] 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 also New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).

The decision to terminate parental rights is very fact specific.

"Trial Court findings are ordinarily not disturbed unless they are so wholly unsupportable as to result in a denial of justice, and are upheld wherever they are supported by adequate, substantial and credible evidence." When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support. [New Jersey Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (quoting Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)).]

Further, because of the particularized expertise of family court judges in family matters, we accord enhanced deference to family court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998).


Under N.J.S.A. 30:4C-15.1(a)(1), DYFS must prove by clear and convincing evidence that a danger to the child's health and development exists resulting from the parental relationship.

K.H.O., supra, 161 N.J. at 348. The focus of the first prong is "the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. The first prong does not just focus on past events, but also requires consideration of "whether the parent . . . may harm the child in the foreseeable future." A.W., supra, 103 N.J. at 607.

Defendant argues on appeal that the record below demonstrated that, at the time of removal, she was adequately caring for L.C. There was evidence that L.C. was being treated regularly by a pediatrician and was up to date on all immunizations. Despite R.V.'s contentions, there is substantial and credible evidence that L.C. was being harmed by his relationship with R.V.

At the time of removal, R.V. tested positive for cocaine use. Further, R.V.'s home was described by a DYFS caseworker as "hazardous and deplorable." The worker noted that the house was strewn with dirty dishes, infested by fruit flies, and endangered by extension cords all over the floor. L.C.'s bed was broken and unusable, and the worker noted a strong smell of body odor in the home. See New Jersey Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 436 (App. Div. 2009) (considering defendant mother had "abused drugs and generally put her children at risk by failing to maintain a clean and healthy home environment" in finding the first prong satisfied).

Subsequent to removal, L.C. was evaluated by the Audrey Hepburn Children's House which concluded that L.C. was "very delayed" in his "knowledge of basic concepts such as colors, letters, and numbers." Further, L.C. demonstrated "delays in speech/language development . . . and [showed] marked weakness in attention/concentration." Dr. Barone concluded that "some of [L.C.]'s emotional problems and development delays were likely due to the neglect that he endured while in the care of [R.V.] during the first five years of life."

"Evidence of serious emotional injury or developmental delay satisfies this prong." New Jersey Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582, 591-92 (App. Div. 1996). L.C. is clearly a child suffering from both developmental and emotional delays. The trial judge found Dr. Barone's opinions to be credible and reasonably made, which determinations are binding on appeal. F.M., supra, 375 N.J. Super. at 259. Dr. Barone's conclusion that some of L.C.'s delays are attributable to the neglect he suffered while living with R.V. is supported in the record.

R.V.'s drug use, the conditions of the home, and L.C.'s developmental and emotional delays provided clear and convincing evidence that L.C. was harmed by his relationship with R.V. We conclude that DYFS carried its burden with respect to the first prong of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.


The second prong of the statute focuses on parental unfitness. K.H.O., supra, 161 N.J. at 353. Parental unfitness can be demonstrated by the failure of the parent to provide a stable home resulting in a delay in the permanent placement of the child. Ibid.

[T]he second element of the best interests standard must focus on the measures taken by the parent after the child's birth to maintain the parent-child relationship and to foster an environment leading to normal child development. The Appellate Division in B.G.S. . . . observed that "harms attributable to the biological parent include the prolonged inattention to a child's needs, which encourages the development of a stronger, 'bonding relationship' to foster parents," which if severed could cause the child profound harm. [Id. at 352 (citing B.G.S., supra, 291 N.J. Super. at 592).]

In looking at parental fitness, the court "should only determine whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care." A.W., supra, 103 N.J. at 608. The Supreme Court stated, "N.J.S.A. 30:4C-15.1(a)(1) and (2) are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." D.M.H., supra, 161 N.J. at 379.

R.V. argues that she had eliminated any harm to L.C. by successfully completing the MICA program and her continued involvement with counseling. Additionally, R.V. points to her visitations with L.C., which were reported to show a "positive and loving interaction" between the two.

The expert testimony presented at trial, from both Dr. Barone and Dr. Schild, was that R.V. was not then in a position to take on the full time care of her son. The only dispute at trial was whether R.V. would ever be in a position to care for L.C. Dr. Barone concluded that R.V. would never be able to care competently for her son, whereas Dr. Schild believed that R.V. would, at some point in the future, be able to care for L.C. if she continued her involvement with the appropriate services.

As previously stated, the trial judge credited the testimony of Dr. Barone, who found that R.V. would most likely never be in the position to care for a small child, especially L.C., because of his special needs. Dr. Barone's opinion is more than amply supported by the record.

While R.V. had completed MICA programs and, at the time of termination, was compliant with counseling, her behavior continued to evidence potential harm to L.C. R.V.'s refusal to accept L.C.'s allergies, evidenced by her having surreptitiously fed him peanut butter cookies and her failure to administer his nebulizer treatment during an overnight visitation, demonstrates the potential for future harm. Even if R.V. were one day to reach the point of being able to care for L.C., as suggested by Dr. Schild, the open-ended delay in providing permanency to L.C. would warrant termination in this case.

We conclude that there was substantial, credible evidence in the record to support the trial judge's finding that DYFS had proven the second prong by clear and convincing evidence. N.J.S.A. 30:4C-15.1(a)(2).


Under the third prong of the best interest standard, DYFS is required to make reasonable efforts to provide the parent with services to correct the problems that led to the removal of the child from their care. N.J.S.A. 30:4C-15.1(a).*fn6 What is reasonable in a situation needs to be determined on an individualized basis.

DYFS must encourage, foster and maintain the bond between parent and child as a basis for the reunification of the family. DYFS must promote and assist in visitation and must keep the parent informed of the child's progress in foster care. DYFS should also inform the parent of the necessary or appropriate measures he or she should pursue in order to continue and strengthen that relationship and, eventually become an effective caretaker and regain custody of his or her children. [D.M.H., supra, 161 N.J. at 390.]

It is the public and judicial policy of the State to do all that is practicable to maintain the biological family unit. A.W., supra, 103 N.J. at 608.

In his written opinion, the trial judge discussed the services provided to R.V., which R.V. does not dispute. Rather, R.V. argues that DYFS failed to meet the third prong of the best interest standard because it did not heed her request for family counseling for her, L.C., and P.T.

Based on the evidence in the record, any further services provided aimed at the reunification of R.V. and L.C. would have gone far beyond the reasonableness requirement of N.J.S.A. 30:4C-15.1(a)(3).

Some factors that suggest that efforts to reunite the family "are no longer reasonable" include "parents [who] refuse to engage in therapy or other services; . . . parents [who] cannot benefit from therapy or instruction due to mental retardation or psychosis; . . . parents [who] threaten workers, child, foster parents, or therapists; . . . another child in the home is abused or neglected and taken into care; . . . [and the] child shows serious adverse reaction to contact with parent . . . ." [A.W., supra, 103 N.J. at 610 (citation omitted).]

It is undisputed that, despite an initial relapse, R.V. did participate in the services offered to her. However, it was Dr. Barone's opinion that R.V. had not sufficiently benefited from these services, nor would she likely in the future. Dr. Barone concluded that:

Despite the appearance of [R.V.] making moderate treatment gains, data collected from the current evaluation strongly suggests that these gains are superficial at best. Moreover, [R.V.] suffers from a rather severe constellation of mental illness, of which she is in denial. [R.V.] refuses to acknowledge her psychopathology, which will make it quite difficult to treat. Even with treatment, her disordered personality structure is well-ingrained and quite resistant to change.

Dr. Barone's opinion, that no matter what services were offered to R.V. she would not benefit from them due to psychosis, finds support in the record. For example, R.V. continually called and "raged" at the foster mother late at night. Another example is R.V.'s continuing denial of L.C.'s allergies. Under the standard articulated in A.W., supra, there is support in the record for the finding that any efforts to reunite the family are no longer reasonable. 103 N.J. at 610.

We find that DYFS presented clear and convincing evidence that reasonable services aimed at reunification were provided to R.V. satisfying N.J.S.A. 30:4C-15.1(a)(3). Further, we believe that the services R.V. requested, but did not receive, were not reasonably required of DYFS.


The fourth prong of N.J.S.A. 30:4C-15.1(a) requires the determination of whether the termination of parental rights will not do more harm than good to the child at issue. "The risk to children stemming from the deprivation of the custody of their natural parent is one that inheres in the termination of parental rights and is based on the paramount need the children have for permanent and defined parent-child relationships." In re Guardianship of J.C., 129 N.J. 1, 26 (1992).

Typically, in cases where the child has been placed in foster care, the necessary inquiry is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. This inquiry requires expert opinion testifying to the strength of the relationship between the child and the biological and foster parents. Ibid. However, no comparative bonding evaluations were possible because L.C.'s long-time foster parents were not interested in adopting and L.C. was moved to a new, pre-adoptive foster home shortly before the guardianship trial.

At trial, Dr. Barone and Dr. Schild differed in their opinion as to the bond that existed between L.C. and R.V. As already discussed, the trial judge found Dr. Barone's "opinions [] more reasonable and credible" than Dr. Schild's opinion. Our review of the record demonstrates that it fully supports the reasonableness of the trial court's determination.

Consequently, we are bound by it on appeal. F.M., supra, 375 N.J. Super. at 259.

Dr. Barone recognized that L.C. will experience an exacerbation of pre-existing emotional and behavioral difficulties as a result of severing ties with [R.V.], . . . the intensity of these problems will dissipate over time with the continued provision of therapeutic services. Given the insecure and ambivalent foundation of his attachment with [R.V.], [L.C.]'s reaction to the loss of his birth mother will be transient. Moreover, his recovery from this loss can be expedited by the development of a new relationship with competent and emotionally stable adopted parents that [L.C.] so desperately deserves.

We find particularly compelling Dr. Barone's statement at trial that the bonding session between R.V. and L.C. "was one of the most uncomfortable and inappropriate sessions that [she] ha[d] ever witnessed." R.V. exhibited "poor boundaries, inappropriate language, utter hysteria," and she insisted on taking pictures of L.C.'s stomach after he had asked her to stop. Dr. Barone's findings clearly support the trial judge's decision that termination of R.V.'s parental rights was in L.C.'s best interest.

Additionally, we find it significant that even Dr. Schild found that R.V. was not currently able to parent L.C. full time. He could not state at what point in the future she would be able to take on full custody of L.C. Dr. Barone testified that for L.C., "permanency is really critical because his [] resiliency [is] starting to wear thin." Further, because L.C. had been without a permanent placement for so long, "he is on the brink of losing his ability to form future healthy attachments."

We conclude that DYFS presented clear and convincing evidence that the termination of R.V.'s parental rights will not do more harm than good both because of R.V.'s inappropriate behavior towards L.C. at times and also because of the lack of permanence L.C. would suffer if R.V.'s rights are not terminated. N.J.S.A. 30:4C-15.1(a)(4).


Finally, R.V. appeals the denial of her motion for visitation with L.C. pending the outcome of this appeal. In light of our decision to affirm the termination of R.V.'s parental rights, we need not address this issue. We note only that "[w]hereas temporary remedies deprive parents of custody only, leaving the extent of parental visitation for further adjudication, a successful guardianship action under N.J.S.A. 30:4C-15 to -24 necessarily entails a cessation of visitation." New Jersey Div. of Youth & Family Servs. v. D.C., 118 N.J. 388, 395 (1990).


In summary, we affirm the termination of R.V.'s parental rights to L.C., finding that DYFS has proven all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.


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