May 13, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF N.Q.N., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-67-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2009
Before Judges Winkelstein, Fuentes and Gilroy.
D.N., the biological mother of N.Q.N., appeals from the August 10, 2007 order of the Family Part that terminated her parental rights to her son. The parental rights of A.C., the named biological father, were also terminated, but he does not appeal. For reasons that follow, we reverse and remand to the trial court for further proceedings consistent with this opinion.
This is the second termination action filed by the New Jersey Division of Youth and Family Services (DYFS) seeking to terminate D.N.'s parental rights to N.Q.N. On January 30, 2004, DYFS filed its first complaint for guardianship. The case was tried in October 2004. On December 13, 2004, the trial court entered an order, supported by a written opinion, determining that DYFS had failed to prove the third and fourth prongs of the best interests of the child standard. N.J.S.A. 30:4C-15.1a. Accordingly, the court dismissed the termination complaint and reopened the prior protected services litigation, concluding that D.N. "should be given a chance to demonstrate whether she can parent her son [N.Q.N.]."
On October 4, 2006, the court granted DYFS's emergent application to remove N.Q.N. from D.N.'s custody because of D.N.'s pending dismissal from the residential placement where she and her son had been residing. On September 26, 2006, DYFS filed its second complaint for guardianship. The matter was tried in July 2007. On August 10, 2007, the trial court entered an order, supported by an oral decision, determining that DYFS had proven the four prongs of the best interests of the child standard. On the same day, the court denied D.N.'s oral application for a stay pending appeal to allow for continued visitation.
Although there were two separate termination proceedings before the trial court, the evidence presented during the second trial overlaps the evidence presented during the first. Accordingly, it is necessary to review the first proceeding to bring the second proceeding into context.
I. The First Complaint
The facts pertaining to the first termination proceeding are as follows. D.N., born August 1986, struggled through her formative years. DYFS first became involved with D.N. in September 1987 when it investigated referrals involving physical abuse, neglect, and substance abuse on the part of her parents. After D.N.'s mother died of an HIV-related illness in October 1991, having lost contact with her father, D.N. first lived with her maternal grandmother and afterwards with her maternal great aunt. Because of behavioral problems, D.N. remained under the supervision of DYFS, with the agency providing her counseling services and monitoring.
On August 18, 2000, while detained in the Essex County Juvenile Detention Center at the age of fourteen on a charge, which if committed by an adult, would have constituted aggravated assault, D.N. was evaluated by Dr. Gary Madriss, a psychologist. During the interview, D.N. admitted to committing acts, which she described as "wilding out," that is, "frequent episodes in which she cuts people with razor knives." At the time, she had been suspended from her eighth grade class in school because, having become bored, she often started arguments and fights. Nevertheless, in the previous grade, she was found eligible for the gifted and talented class. Madriss described her as "an enigma for the school personnel." He opined that D.N. "requires a strong supportive female therapist who can attend to her needs and allow her to both work through closure regarding her mother as well as to work on gaining anger management skills."
N.Q.N. was born on April 14, 2002, while D.N. was incarcerated in the Juvenile Female Secure Care and Intake Facility in Bordentown. D.N. had been committed to the facility for one year on October 24, 2001, for possession of a controlled dangerous substance. On April 15, 2002, DYFS received a referral from the juvenile facility, informing the agency of N.Q.N.'s birth. A DYFS caseworker immediately contacted the Capital Health System at Mercer Hospital in Trenton and confirmed that D.N. had given birth to N.Q.N. the previous day, and that the baby was healthy.
On April 23, 2002, DYFS filed a complaint seeking legal custody of both D.N. and her son. The court granted the relief requested.*fn1 On May 8, 2002, N.Q.N. was discharged from the hospital to a Project Babies foster home after DYFS had explored D.N.'s relatives for her son's placement, but found none of them appropriate to care for the child. On July 2, 2002, D.N. was released from the juvenile facility and moved in with a twenty-year old female friend, L.M.
On July 12, 2002, at DYFS's request, D.N. underwent a psychiatric evaluation by Dr. Alvaro Gutierrez, M.D. He diagnosed D.N. with conduct disorder, NOS and R/O post-traumatic stress disorder. He found that D.N. was intelligent, not psychotic. He opined that she "may be able to take care of her son if she receives intensive and extensive support." The doctor also recommended that D.N. undergo psychological testing, be referred to a parental skills training class, receive random drug-screening tests, and be referred to a community mental health clinic for psychotherapy. Lastly, he stated that D.N. should have "unsupervised visitation rights and if she follows the above recommendations and shows interest, she may be able to take care of her son if she has the appropriate support."
On July 9, 2002, following Gutierrez's recommendation, DYFS requested that D.N. undergo a psychological evaluation by Dr. Leslie Williams, a psychologist. After reviewing D.N.'s history of antisocial and acting-out behavior, Williams concluded that D.N. "was probably neglected as a child and may have been abused herself. She undoubtedly has unmet nurturance needs as well as unresolved anger and sadness over the abandonment by her parents, one of them by death." The doctor opined in his report of August 9, 2002, that:
[D.N.] is not capable of providing adequate parenting of [N.Q.N.] independently. While she may not be intellectually limited, she has severe emotional and behavioral problems that have not gone away just because she was incarcerated (particularly since [D.N.] did not appear fazed by her time in detention). [D.N.] has not demonstrated the ability to effectively meet her own needs let alone those of a child who would be dependent on her. She needs intensive psychotherapy including anger management, interpersonal problem solving and impulse control training. [D.N.] also needs therapy for her grief and anger that may still be motivating her behavior. She needs substance abuse treatment for alcohol abuse. [D.N.] would most benefit from a residential treatment facility where she would have structure and guidance along with treatment and education.
It might be feasible for her to have [N.Q.N.] with her if she were in such a program . . . . [D.N.] will undoubtedly resist treatment and test limits; it is better if she does that without [N.Q.N.] in her care where he would be at risk for at least neglect. She should have regular contact with [N.Q.N.] but it will take a minimum of one year before [D.N.] can be considered stable enough to have a child in her care.
Commencing at the end of July 2002, DYFS arranged for D.N. to receive parenting classes and counseling through Project Babies at Youth Consultation Service (YCS). During that time, D.N. was permitted to visit her son daily through Project Babies. In September 2002, after D.N. engaged in a verbal confrontation with L.M. over D.N.'s failure to follow L.M.'s house rules of cleaning up after herself and not staying out late at night, L.M. requested that she leave her home. D.N. then moved in with her sister and her maternal grandmother.
In October 2002, DYFS was advised by YCS that D.N. had attended only one of seven counseling sessions. Nevertheless, YCS suggested that if D.N. and her son were placed in a residence together, it would foster their relationship. In November 2002, DYFS filed a request seeking Interstate approval for placement of D.N. and N.Q.N. with A.W., D.N.'s maternal great aunt in Maryland, after the great aunt had expressed an interest in caring for them. In the interim, D.N. remained in the care of relatives in New Jersey. While waiting for placement approval with A.W., DYFS simultaneously sought residential placement in New Jersey. Unfortunately, none of the placement programs were suitable for D.N. and her son. For example, while one program only accepted pregnant teens, another only accepted mothers over eighteen years of age.
On May 7, 2003, Tanya Holland, a clinical extern, and Dr. Jennis Hanna, a psychologist, issued a joint treatment summary of D.N. on behalf of YCS. They noted that D.N. "shows care and concern for her son and [N.Q.N.] appears to be at ease with his mother. [N.Q.N.'s] attachment to his mother is evident in the way he is comforted by her, seeks her out when she leaves the room and smiles when he sees her." Acknowledging that D.N. is eager to leave her current living situation and to reunite with her son, Holland and Hanna found that: "[p]lacement in a residence that allows the two of them to be together is an ideal way to foster their relationship. Reunification should still be considered a viable option."
Meanwhile on April 28, 2003, D.N. underwent another psychological evaluation at the request of DYFS for the purpose of assessing her parenting capabilities. The evaluation was performed by Dr. Albert Griffith, a psychologist. He diagnosed D.N. with conduct disorder and oppositional defiant disorder. As for D.N., he recommended that if placement with her maternal great aunt in Maryland did not come into fruition that she should be placed with another relative or person who would be agreeable to accept co-parenting. He opined that "[g]iven [D.N.'s] level of maturity it is not likely that she will be able to parent independently for the foreseeable future. Thus placing her in sole custody of a child is contra-indicated."
In the interim, N.Q.N. remained at Project Babies for one and one-half years before being placed in foster care. On August 13, 2002, N.Q.N. underwent an evaluation for early intervention services. The evaluation determined that he had a 25% delay in all areas. The clinician who performed the evaluation recommended that he be enrolled in an Early Intervention Program with parent education and support. On April 3, 2003, N.Q.N. was placed in foster care with the M's. On May 10, 2004, he was placed with new foster parents, the D's. While there, he continued to require early intervention services in the area of his communication skills.
On October 23, 2003, DYFS was advised by D.N.'s great aunt in Maryland that, because of personal medical reasons, she would be unable to care for either D.N. or her son. During this time period, D.N. maintained weekly visitation with her son through Tri-City Peoples Corporation (Tri-City). On November 21, 2003, the court approved DYFS's permanency goal of adoption. The order also provided that DYFS was to provide D.N. an opportunity to enter a residential program. On January 30, 2004, DYFS filed its complaint for guardianship.
On January 6, 2004, D.N. was placed in the Isaiah House's Community Creche Program. While there, D.N. completed parenting classes, maintained regular visitations with N.Q.N., and attended General Equivalency Diploma (GED) preparatory courses. DYFS also referred D.N. to Johnson and Associates for individual counseling. After an interview with Newark Renaissance House, D.N. was found not to need substance abuse treatment. In fact, D.N. never tested positive for controlled dangerous substances after her son's birth.
When D.N. was initially placed in the Community Creche Program, it was DYFS's intention to place N.Q.N. with D.N. within one or two months of her admittance into the program. However, on April 5, 2004, the Community Creche Program notified DYFS that D.N.'s ability to remain in the program was dependent on her emancipation because the program was not licensed to serve minor mothers unless they were emancipated. As a result, D.N. was transferred to Isaiah House's Teen Map Program for teenage girls, but N.Q.N. was not placed with her.
On March 17, 2004, Dr. Williams conducted a second psychological evaluation of D.N. and a bonding evaluation of D.N. and N.Q.N. In his report dated April 13, 2004, Dr. Williams stated as to D.N.:
I continue to believe that [D.N.] is not capable of independently caring for [N.Q.N.]. She still needs psychotherapy to address the issues noted in my last report and the current one; she still needs to address her history of alcohol/drug abuse. If [D.N.] and [N.Q.N.] were placed together in a program such as Isaiah House, it would need to be a long-term program of at least one year in length. Such a program should address her educational and vocational needs as well as actively work on her parenting skills. The program would need to be attuned to [D.N.'s] significant psychological issues that undoubtedly interfere with her ability to care for a child. I believe that she would need supervision on a daily basis to help her address the stresses of caring for a young child.
After noting in his bonding evaluation that D.N. was attentive to her son and her son appeared to enjoy being with his mother and liked her attention, Williams opined:
With regard to the bond between [N.Q.N.] and [D.N.], I believe that [N.Q.N.] is forming a positive bond with her but, due to his developmental age and the fact that he has never lived with [D.N.], I do not believe that the bond is a permanent one at this time such that [N.Q.N.] would experience severe and enduring psychological harm if his contact with [D.N.] were to end. [D.N.] has a long way to go before she would be able to provide adequate parenting to a child. She needs much help in every area of her life (e.g., emotional/psychological, educational, financial, and vocational). Unfortunately, it remains to be seen whether she can actually make and sustain positive changes in her life. Her prognosis would have to be considered guarded at best, and this is based on [D.N.] actively cooperating with all of the above recommendations.
D.N. retained Dr. Matthew Johnson, a psychologist, to evaluate her, focusing on her parenting competence and the placement needs of her son. As noted in Johnson's report of July 12, 2004, he conducted the examination on July 7, 2004, when D.N. was seventeen years old and her son was two years old. During the examination, the doctor conducted an at-length interview of D.N., reviewed various prior reports including the August 9, 2002 initial psychological report of Dr. Williams and records from Tri-City concerning D.N.'s visitation with her son on a weekly basis from November 26, 2003, to January 6, 2004.
Dr. Johnson also conducted several psychological tests of D.N., including the Wide Range Achievement Test, for the purpose of assessing her academic skills; the Beck Depression Inventory, to assess for evidence of depressive systems; the Beck Anxiety Inventory, to assess for evidence of anxiety symptoms; and the Parent-Child Relationship Inventory, to assess D.N.'s parenting attitudes and approaches. Johnson opined that his examination did not reveal any signs of psychiatric symptoms or psychological impairment. He found that her academic skills were adequate, with indications that she was advanced in some areas. Lastly, he determined that her responses indicated that she was "adequately knowledgeable to provide custodial care to her son," but he qualified that determination with the need to conduct further parenting skills and bonding evaluations.
On August 30, 2004, Johnson conducted a bonding evaluation of D.N. and her son. Following the evaluation, Johnson stated in his report of September 3, 2004, that his "[o]bservation of their interaction indicates attachment, apparent in [N.Q.N.'s] recognition and response to his mother as well as the mutual displays of affection. Available records indicate that [D.N.] has provided a consistent presence in her son's life through regular visitation and reports indicate her behavior with him during the visits has been appropriate and nurturant." Dr. Johnson opined:
The findings indicate that [D.N.] is a viable permanent placement for her son if she is provided supportive housing (such as that offered through Isaiah House) and/or other social supports. It is recommended that [D.N.] continue to receive mental health counseling and receive social service support from DYFS. It is also noted that delaying this child's placement with his mother may have adverse effects given [N.Q.N.'s] tender age.
Following a seven-day trial in October 2004, the trial court determined that, although DYFS satisfied the first two prongs of the best interests of the child standard, it failed to prove the third and fourth prongs. The court found that DYFS failed to meet the third prong because it had not made reasonable efforts toward reunification in that it failed to secure a common residential placement for D.N. and her son. The court reasoned that D.N. "should have been given an opportunity to truly demonstrate whether she was capable of parenting her son in a structured environment." Accordingly, the court dismissed DYFS's guardianship complaint and reinstated the prior protected services litigation. In so ordering, the court directed that N.Q.N. be immediately placed with his mother in a residential program "for a six-month period in order to assess her ability to parent." On December 17, 2004, N.Q.N. was placed with D.N. at Isaiah House.
II. The Second Complaint
The second termination action was tried before another judge. Testifying at the trial on behalf of DYFS were: Dr. Elayne Weitz, a psychologist; and Helen Saliman and Nancy Kimaru, DYFS caseworkers. Testifying on behalf of D.N. were Dr. Johnson and D.N.
On placement at Isaiah House, N.Q.N. was enrolled in the facility's on-site daycare. By the time N.Q.N. was placed with D.N., D.N. had completed her second parenting class; received her GED; studied and received a certificate in food handling; registered herself for welfare; and was interviewing for job placement.
Initially, when N.Q.N. arrived, D.N. failed to address all his needs. For example, D.N. failed to attend breakfast with her son on time; failed to provide him with his medication; and failed to properly dress him. She was also cautioned by staff that she was not spending sufficient time with her son, but rather was leaving him at the daycare center. As described by one of the clinicians in Isaiah House, "[a]lthough she would not admit it, D.N. is slightly overwhelmed by the new expectations of her, now that she is in a position to demonstrate her ability to parent. She has had difficulty getting herself up on time to provide bathing and unhurried breakfasts for [N.Q.N.] (and herself)."
By March 2005, D.N. had re-engaged in counseling and anger management. In addition, she was granted weekend pass privileges to stay at the home of B.S., her aunt, whose home was found appropriate for overnight stays by DYFS. Unfortunately, according to Saliman, N.Q.N.'s then caseworker, Isaiah House subsequently reported several incidents concerning D.N.'s violations of the program's behavioral rules.
The first occurred on August 30, 2005, when Isaiah House reported that D.N. was associating with a former resident of the program and "that they might be drinking." D.N. admitted that she had befriended the former resident but denied drinking. The second incident occurred on September 9, 2005, when D.N. and her son were away from Isaiah House on a weekend pass. D.N. returned to Isaiah House around 12:30 a.m. to pick up some personal belongings. When asked where N.Q.N. was, D.N. replied that he was in the car outside. However, a security guard reported that when he checked the car, N.Q.N. was not in it. D.N. explained that the security guard probably looked in the wrong car, and Saliman never followed up by questioning the guard further.
The third incident involved D.N.'s abuse of her weekend pass privileges. In October 2005, Isaiah House reported that it had discovered that D.N. was not always staying overnight at the approved home of her aunt, B.S. D.N. denied the allegation. However, when Saliman visited B.S.'s home to confirm that D.N. stayed there on weekends, B.S. told her that, although D.N. and N.Q.N. visited her sometimes, they never stayed overnight, but instead slept at D.N.'s grandmother's house. Saliman visited the grandmother's house and described it as a "mess" with no lights, and smelling of cat urine.
Contrary to D.N.'s version of events, the grandmother confirmed that D.N. and N.Q.N. slept there. When confronted, D.N. again denied that she slept there, insisting she slept at B.S.'s home, even when Saliman called B.S. in front of D.N. to confirm her story. D.N. stated that she did not always spend the night at B.S.'s house because N.Q.N. would fall asleep somewhere else and she did not want to move him, but that she and N.Q.N. did sleep at B.S.'s sometimes. As a result of this incident, D.N.'s weekend passes were revoked.
According to D.N., the loss of her weekend passes prevented her from attending her four-hour Saturday class at Essex Community College, resulting in a failing grade. D.N. stated that when she tried to speak to Saliman about the class, Saliman "would say something like, 'You're not the only person that I have on my caseload' . . . or something like that." However, Saliman denied that D.N. told her that she was unable to attend the class after her weekend passes were revoked, and that no one would have prevented her from going to school for any reason.
Other difficulties continued between D.N. and the Isaiah House staff. The program workers reported that D.N. did not "maintain a clean environment for herself and [her son]." D.N. contended that she did keep her room clean, but that the "staff want[ed] her to do things in a certain way, and if she doesn't do it [the] way they want her to . . . they fail her room inspection." According to Saliman, D.N. told her that she will not "do it that way" and described it as "a constant battle between [D.N.] and the staff in trying to keep her environment clean." Whenever the staff would remind D.N. to cut N.Q.N.'s hair, do laundry or straighten her room, D.N. acted resentful.
D.N. acknowledged that problems existed between her and the Isaiah House staff. Although D.N. took responsibility for many of the incidents that occurred at Isaiah House, she also placed part of the blame at the feet of Nancy Harris, the Program Director. According to D.N., Harris "just couldn't respect [her] space" and "deemed it appropriate to jump in [her] face and yell in [her] face and call [her] all types of names" such as "a child." She also experienced several conflicts with Harris over the use of the telephone, including one where Harris told her to hang up the phone while she was speaking to her attorney.
D.N. felt that the Isaiah House staff treated her unfairly compared to other residents because she had been there longer and they were more familiar with her. She complained that they intruded on her privacy and confiscated harmless possessions, such as nail polish. By the time D.N. was asked to leave Isaiah House, she was very frustrated with both the residential program and DYFS.
In the fall of 2005, D.N. removed her son from daycare and enrolled him in school based on his IEP evaluation and on the recommendation of the East Orange Board of Education (Board) that public school would meet his special education needs better than daycare. D.N. first tried to enroll N.Q.N. in a Newark school that she thought would best meet her son's needs, but DYFS informed the Board that D.N. lived in East Orange, not Newark, and as such, the Board did not approve the transfer.
On November 3, 2005, the trial court directed D.N. to resume therapy and to comply "a hundred percent" with the rules of Isaiah House. On a referral by DYFS, D.N. received individual therapy at the Family Service Bureau. Nevertheless, D.N. received a warning of dismissal from Isaiah House on November 29, 2005 for noncompliance with its rules, disrespecting the staff and "uttering obscenities in public before the children."
In mid-March 2006, a problem arose concerning D.N.'s welfare benefits. D.N. received a telephone call from the welfare agency informing her that someone from DYFS had contacted welfare and told the agency not to continue Temporary Assistance for Needy Families (TANF) aid to D.N. because DYFS had legal custody of her son. D.N. testified:
I didn't have food stamps to go and get anything in case my son needed something for school. I didn't have cash in case he needed something like maybe sneakers or a pair of pants. And I didn't have medical benefits any longer. . . . [such as] Medicaid. I didn't have anything for him.
I couldn't take him to the doctor. I couldn't take him to the emergency room without having to get charity care and then pay the remaining balance. I couldn't get prescriptions filled.
On March 22, 2006, N.Q.N. became sick at school. According to Saliman, despite D.N. having been told that her son could not return to school without a doctor's note, D.N. did not take him to a doctor because of the problem with his Medicaid. This information was not accurate. Saliman conceded that D.N. had provided evidence during her April 5, 2006 removal hearing that D.N. had brought her son to the Mountainside Hospital emergency room on March 23, 2006, where he was treated and discharged that evening. N.Q.N. returned to school the next day.
In April 2006, D.N. received a ten-day removal notice from Isaiah House. D.N. was then nineteen years old, and N.Q.N. was four years old. Saliman began making inquiries into other programs for placement of D.N. and N.Q.N. with the following results: Eva's Village and Sunrise program would not accept them because both programs were only for mothers with substance abuse problems; the Family Shelter program had no openings; and the New Mothers program would not take children over two and one-half years old. Although the Switch Program acknowledged that D.N. and her son qualified for its program, it required D.N. to undergo a psychological and a substance abuse evaluation before entry.
Based on the lack of placement options available, DYFS filed a request to place N.Q.N. in an approved foster home, asserting that D.N. had not demonstrated that she could independently care for N.Q.N. Because the evaluations ordered for the Switch Program were still outstanding, the court ordered N.Q.N. placed in a foster home with the expectation that if the Switch Program accepted D.N. and N.Q.N., they could be placed together in that program.
On April 4, 2006, D.N. underwent a substance abuse evaluation that proved negative. On the same day, Dr. Williams performed a psychological evaluation of D.N., but the Switch Program rejected her because, according to Saliman, "if she did not follow [the] rules in Isaiah House, she's not going to follow through with their program which [is] . . . more strict." Williams concluded in his undated report of that evaluation:
[D.N.] said that she wants to go to another program where she can have [N.Q.N.] with her. DYFS is reportedly working on this.
However, I believe that [D.N.] will do the same thing that she has done at Isaiah House. I believe that when she is given rules and regulations to follow, she will ignore them and attempt to do things her own way. It is unlikely that [D.N.] will accept guidance and help from others and she will continue to test limits and rebel. I believe that [D.N.] needs long-term intensive psychological treatment that is on a weekly basis to deal with her own emotional issues stemming back from her childhood. I think that she remains an angry, immature young adult who has not shown the ability to meet her own needs, let alone those of a young child.
D.N. resumed her bi-weekly visitations with N.Q.N. under the supervision of Tri-City at a McDonald's restaurant. Saliman testified that most visits went well and that N.Q.N. "was happy to see his mom, and his mom was happy to . . . see him too" and "he cried . . . at times when he ha[d] to leave." However, several of the visits caused Saliman some concern. At the September 21, 2006 visit, N.Q.N. hit D.N. in the face and D.N. responded by hitting him back. When N.Q.N. continued to act out, D.N. would either hit him back or "pluck him with her finger." When the DYFS caseworker told D.N. she should not hit N.Q.N., D.N. responded "that she was not going to let him act out when he was with her." After N.Q.N. jumped on a table at one point, D.N. grabbed him by the legs, causing him to scream. The worker ended the visit early.
A second incident occurred on January 11, 2007. N.Q.N.'s shoe had fallen off and when he refused to put it back on, D.N. told him "if he didn't put the shoe back on that she would take him in the bathroom." When the DYFS worker told D.N. that she should not threaten N.Q.N., she replied "that's her son and she could do whatever the hell she wants with him" and that she was only threatening him to scare him.
On September 28, 2006, DYFS removed N.Q.N. from his then foster home and placed him with the D's, the foster family he had lived with prior to residing with his mother. Saliman stated that N.Q.N. bonded immediately with the foster family, including the D's two-year old adopted daughter.
In October 2006, N.Q.N.'s case was transferred from Saliman to caseworker Kimaru. Before Saliman left the case, she referred D.N. to therapy at the University of Medicine and Dentistry of New Jersey (UMDNJ) on July 28, 2006. An appointment was scheduled for August 24, 2006. Saliman testified that D.N. neither attended the appointment nor therapy while Saliman remained the caseworker. To the contrary, D.N. testified that she went for the appointment but did not hear the attendant call her name and was told to reschedule. However, D.N. did not reschedule because she had "received word that Dr. Johnson deemed it inappropriate for [her] to go there" because it was the wrong setting for her and they would prescribe medication as part of the program.
Kimaru testified that N.Q.N. was very comfortable in the D's foster home and was attached to the foster mother. She described N.Q.N.'s interactions with the family as appropriate and positive. At the time of trial in July 2007, N.Q.N. no longer required speech therapy and was academically capable of attending public school in a regular classroom in the fall. Kimaru also testified that DYFS considered D.N.'s sister as a possible custodial resource for N.Q.N. However, DYFS rejected her sister as a caretaker and properly informed her of the "rule out." D.N.'s sister did not appeal the decision.
Initially, the D's had some hesitations about adopting N.Q.N. In January 2006, Mrs. D was offered a promotion at work that would have required her to travel more often. This presented a childcare issue for N.Q.N., Mr. D having concerns about his ability to parent N.Q.N. without his wife's assistance. Mrs. D. eventually declined the promotion to be more available to N.Q.N.
D.N. has a sporadic school and employment history. She attended Essex County Community College in fall of 2005. She enrolled in three classes, including the Saturday class, which she failed when her weekend pass privileges at Isaiah House were revoked. She received an "A" and a "B" in the two classes she completed. When D.N. left Isaiah House, she was moving "from place to place." She did not return to school the following semester because she lacked financial aid. However, at trial D.N. testified that she had registered for classes for the fall of 2007 and filed for financial aid.
As for employment, at the time of trial, D.N. had only been employed for a total of four months in the previous three years. D.N. worked at a daycare center as a substitute child monitor from 9:30 to 5:30 during the summers of 2005 and 2006. At the end of July 2006, the director of the daycare center told D.N. there were not enough children enrolled to keep her employed full time and that she would be on call. Around this time, Saliman visited the daycare to see D.N. and the director informed her that D.N. did not work there anymore.
In 2005, when D.N. had physical custody of N.Q.N., she received job offers from a Seattle's Best coffee store and from United Parcel Service, but had to reject both offers because work began at those two places of employment at 4:00 a.m. and 3:00 a.m. respectively, and D.N. was unable to procure child care for N.Q.N. during those early morning hours. D.N. testified that she was unable to enter a work study program through the college in 2005 because a DYFS meeting ran overtime on the day she would have had to attend a work study orientation. D.N. stated that between her and N.Q.N.'s school hours, it was difficult to find employment to accommodate her schedule.
After N.Q.N. was removed from her care, D.N. applied for employment at the New Jersey Department of Corrections, a fire department, the post office, various fast food restaurants and the Transportation Security Administration (TSA). As of trial, D.N. had completed several steps of the TSA application process but was unaware of the status of her application. D.N. testified that since termination from the daycare center, she had been working odd jobs such as baby-sitting and braiding hair, netting approximately $400 to $500 a month.
Since leaving Isaiah House, D.N. has not obtained stable housing. When she first left the residential program, D.N. lived with her cousin for a month before moving into an apartment in June 2006. She moved again in December 2006 when the building was sold. Although D.N. was able to pay her rent each month out of savings or income, she could not find another apartment because she was not steadily employed and landlords required proof of employment. At the time of trial, D.N. resided with her aunt but would have to soon leave because of her aunt's problems with the building's management. D.N. testified that she was on the waiting list for two different public housing apartments and expected one of them to admit her in the near future. In responding to how she would care for N.Q.N. if she was awarded custody, D.N. replied:
I would definitely obtain a job and an apartment. [N.Q.N.] would be in school. I would be in school. [N.Q.N.] would have all the medical benefits that he needs, depending upon whether it's through the employment that I would obtain, or whether I had to go back to welfare and get Medicaid.
Because I wouldn't have a problem with doing that.
Dr. Weitz conducted three separate evaluations. On September 25, 2006, she conducted a bonding evaluation of D.N. and her son; on September 28, 2006, she conducted a psychological evaluation of D.N.; and on December 5, 2006, she conducted a bonding evaluation of N.Q.N. and his foster family.
As to the psychological evaluation of D.N., Weitz noted in her report of December 20, 2006, that D.N. "cooperated fully with all aspects of this evaluation. During the interview, she was articulate in her responses and appeared to have at least average intelligence." Weitz stated that D.N.'s "demeanor was pleasant, even when confronted about the more negative aspects of her behavior as described in the record. However, she tended to minimize problems and blame others rather than take responsibility for her faults."
During that evaluation, Weitz administered several psychological tests to D.N., including the Shipley self-administered intelligence test and an Incomplete Sentences Blank (ISB) Test, where the individual completes unfinished sentences to make a sentence of his or her own. As to the Shipley test, Weitz found that D.N. is of average intelligence and has "the intellectual capacity to learn from experience, training, and educational materials." As to D.N.'s responses to the ISB Test, Weitz stated that her "responses were articulate and portrayed her as a caring and insightful individual. She frequently mentioned regrets about not being with her son and her desire for reunification. She seemed to think seriously about each of her responses and expressed her thoughts and feelings in a cogent manner."
The doctor noted that during the bonding evaluation of D.N. and her son, N.Q.N. appeared happy to be spending time with his mother, and that there was nothing harmful in their interaction. Weitz testified that during her bonding evaluation she saw "laughing and smiling" between D.N. and her son. She described D.N.'s interaction with her son as "creative and imaginative in her play with him and somewhat instructive. When [her son] got a little bit out of hand, she sat him on her lap to calm him down a little bit and she succeeded in doing that."
Weitz acknowledged that D.N. has been in N.Q.N.'s life since he was born and conjectured that if her son went a month without seeing his mother "he would likely become upset and perhaps act out because that is his style, he's got some aggressive tendencies." However, she also opined "that the harm could be mitigated if he is, which he is, and remains in a home with caretakers who he identifies as . . . his primary attachment figures."
Weitz also testified of concerns caused by reports of D.N. physically abusing N.Q.N. These incidents included the September 21, 2006 visitation when N.Q.N. hit D.N., and she responded by "either pluck[ing] him with her finger, or smack[ing] him," and the January 11, 2007 visitation when D.N. threatened to take N.Q.N. into the bathroom.
On December 5, 2006, Weitz conducted a bonding evaluation of N.Q.N. and his foster family. Present during the bonding evaluation were Mr. and Mrs. D, as well as their two-year-old daughter. During the evaluation, Weitz noted that N.Q.N. referred to his foster parents as "mommy" and "daddy." When Weitz spoke to N.Q.N. alone, he acknowledged that he liked being at his foster parents' home, but did want to see his mother "sometimes." Based on her observations and review of the records, Weitz recommended a termination of D.N.'s parental rights and, therefore, did not recommend that any additional services be provided to D.N.
Weitz made the following conclusions in her December 20, 2006 report:
Based on review of materials, clinical interviews, observations of interactions, and psychological test results, I believe that termination of [D.N.'s] parental rights to [N.Q.N.], and adoption by Mr. And Mrs. [D], is in [N.Q.N.'s] best interest. . . . . . . .
On the positive side, current intelligence testing revealed that [D.N.] has the intellectual capacity to parent children. . . . [D.N.] has not been diagnosed with having severe mood, anxiety, or thought disorders that would cause a child to be unsafe in her care. Similarly, [D.N.] does not appear to have any medical conditions that would inhibit her ability parent [N.Q.N.].
On the negative side, . . . [D.N.] reported being diagnosed with Oppositional Defiant Disorder when she was younger. Individuals who carry this diagnosis show clinically significant symptoms that include frequent loss of temper, arguing with adults, defying rules, annoying people, blaming others, resentfulness, and vindictiveness. [D.N.] has routinely resisted attempts by others to help her . . . . In essence, [D.N.] has spent almost half of her life engaged in irresponsible, illegal, and/or maladaptive behavior. Persistent antisocial behavior makes her a poor role model for [N.Q.N.]. Other characterological traits negatively impact [D.N.'s] ability to provide a safe home for [N.Q.N.]. [D.N.] fails to take responsibility for her problems and tends to blame others when things go wrong. She is highly defensive and has an over-inflated sense of self-worth. She denies and minimizes problems. She can be manipulative and deceitful. The behaviors and attitudes of individuals with these personality traits are difficult to change, in part because they fail to recognize their problems. . . . [D.N.'s] decision-making skills and judgment are deficient. Evidence of this occurred time and again when she failed to take adequate care of [N.Q.N.] at Isaiah House and when she failed to complete DYFS requirements despite knowing they could lead to reunification. [D.N.'s] immaturity causes her to place her own needs before [N.Q.N.'s].
[S]igns of unhealthy bonding exist in [D.N.'s] relationship with [N.Q.N.]. Visitation records indicate that [D.N.] does not always give [N.Q.N.] her undivided attention. This is especially concerning since she is with him for only one hour every two weeks. Records also indicate that [D.N.] is punitive toward [N.Q.N.]. None of these concerns emerged during the bonding evaluation with me. [D.N.] demonstrated the capacity to be loving, attentive, patient, and reinforcing toward [N.Q.N. and N.Q.N.] enjoyed receiving physical affection and praise from his birth mother. In fact, simply being with her made him happy. Yet, he seems anxious and confused about their relationship. He felt uncomfortable when she left the room and needed reassurances that she would come back. His reaction suggests he does not fully trust his birth mother because she has let him down, or broken her promises, in the past. [D.N.'s] approach to discipline is disturbing, especially in light of her having already received parenting education. Physical discipline frightens children and lowers their self-esteem. It does not teach children how to behave correctly. There is always concern that a parent who uses corporal punishment can become abusive, particularly when that individual is easily frustrated, has poor coping skills, and has few resources to turn to for help.
For all these reasons, I do not believe [D.N.] is fit to parent. Any child placed in her care, at this stage in her life, would be at risk for abuse and/or neglect.
To date, [D.N.] has been unable, and possibly unwilling, to eliminate the conditions that led to [N.Q.N.'s] removal in the first place. That is, she has not yet achieved emotional, behavioral, financial, or residential stability.
At trial, Weitz maintained her opinion that D.N. was presently unfit to parent and that the chances were "very slim" that she would be able to parent in the near future. When asked whether it would be appropriate to wait for her to become fit to parent rather than terminate her parental rights, Weitz answered in the negative. "It is also my expectation that [D.N.] will not be able to show the qualities of a fit parent for several years, and to have a child wait in limbo would just be detrimental to his mental and emotional health, if not other areas of health as well."
Dr. Johnson testified as an expert for D.N. Following his initial two evaluations of July 12, and September 30, 2004, he conducted additional evaluations of D.N., D.N. and her son, and of N.Q.N. and his foster parents. On January 5, 2007, Johnson conducted an evaluation of D.N., and on January 11, 2007, he conducted a bonding evaluation of D.N. and her son. In a report dated January 16, 2007, Johnson stated:
The examiner found [D.N.] to be a young mother with limited resources and social supports. However, there are no indications of psychiatric impairment, substance abuse related impairment, intellectual impairment, or criminal offending. She has recently completed a GED and began college courses. She also has maintained and demonstrated her concern and interest in her son's development through visiting with him when he was not in her physical custody. [D.N.] does present as hostile and argumentative at times and this is a psychological obstacle to her development and ability to access help in providing care for her son. Given her relative youth, and other strengths (intellectual capacity and knowledge of child care approaches), it is likely that she will improve in this dimension. It is also very relevant to consider, in the context of the termination complaint, that there are clear indications that [N.Q.N.] is very much attached to his mother . . . .
Among other matters, Johnson recommended that DYFS provide more frequent and lengthy visitations for N.Q.N. and his mother. In doing so, Johnson stated: "Given [N.Q.N.'s] age and attachment to his mother, the current schedule of hourly visits on alternate weeks is inadequate and likely a source of distress to the child. Sensitivity and attention to the needs of pre-school foster children warrant consideration of frequent visits since their sense of time is different than that for older children or adults." Accordingly, Johnson recommended that "[N.Q.N.] visit with his mother 2 times a week for at least an hour each visit. Further, the failure to provide adequate visitation for the child and mother may prejudice the future hearing on the guardianship matters."
Following his bonding evaluation of N.Q.N. and D.N., and of N.Q.N. with his foster parents on March 10, 2007, Johnson issued a report of July 11, 2007, stating that:
Observation and reports suggests that the child is adjusting relatively well in this placement and the family reports they would like to adopt [N.Q.N.] However, the child continues to demonstrate a strong attachment to his mother ([D.N.]) and overtly expresses a desire to be with her. While there are no indications of intellectual impairment, psychiatric impairment, or substance abuse impairment, the mother has limited resources and social supports and has not been able to establish a stable home for herself. While she is by no means an unfit parent, placing the child in her care as an independent parent would present risks due to her lack of resources and support.
It is recommended that some type of supportive housing program for [D.N.] and her son be considered or some type of joint parenting with the foster family that would allow the child to maintain his relationship with his mother.
During his testimony, Dr. Johnson described D.N. as a fit parent "who can care for and be responsible for a child." He acknowledged that she "[c]learly . . . has a difficulty with anger and conflict management and so forth," but that she has improved since he first evaluated her five years earlier. He opined that with additional therapy D.N. would continue to improve. He disagreed with Weitz that D.N. is highly defensive and has an over-inflated sense of self-worth, believing that she was no more manipulative and deceitful than anyone else. He also confirmed what his report stated, that N.Q.N. was very attached to D.N. and depriving him of contact with her would "have an adverse psychological impact on him." The doctor recommended a supportive housing program or "some type of joint parenting with the foster parents." However, Johnson did not recommend immediate reunification because D.N. is not presently able to independently parent N.Q.N.
On August 10, 2007, the trial court rendered an oral opinion, determining that DYFS had proven the four prongs of the best interests of the child standard by clear and convincing evidence. Accordingly, the court entered an order that same day terminating D.N.'s parental rights to N.Q.N. Unfortunately, on March 12, 2008, N.Q.N. was removed from the D's custody and placed with a new resource family home.
On appeal, D.N. argues:
POINT I. THE TRIAL COURT'S DETERMINATION OF THE ULTIMATE FINDING SHOULD BE REVIEWED DE NOVO AND THE TRIAL COURT'S DECISION TO TERMINATE PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE TRIAL COURT INCORRECTLY INTERPRETED THE STATUTORY REQUIREMENTS NECESSARY FOR TERMINATION OF PARENTAL RIGHTS.
A. A PARENT WHO AT [HER] CHILD'S BIRTH IS INCARCERATED AND WHO HAS PROVIDED RELATIVE RESOURCES TO TAKE CARE OF HER CHILD AND WHOSE RELATIVES ARE NOT ABLE TO GET THE CHILD BECAUSE OF BUREAUCRATIC DELAYS CANNOT BE SAID TO HAVE HARMED A CHILD TO A LEVEL JUSTIFYING A FINDING UNDER THE FIRST PRONG BECAUSE BY DOING THIS THE COURT WOULD MAKE A PARENT'S STATUS AS A PRISONER AT THE TIME OF A CHILD'S BIRTH AN IRREBUTTABLE PRESUMPTION THAT A CHILD HAS BEEN HARMED AS A RESULT OF THE PARENT'S STATUS.
B. THE TRIAL COURT INCORRECTLY DETERMINED THAT [D.N.] WAS UNABLE OR UNWILLING TO ELIMINATE THE HARM FACING [N.Q.N.] AND UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR HIM AND THAT A DELAY IN PERMANENT PLACEMENT WILL ADD TO THE HARM.
C. THE TRIAL COURT INCORRECTLY DETERMINED THAT DYFS HAD MADE REASONABLE EFFORTS TO REUNIFY [D.N.] AND [N.Q.N.], AND THE TRIAL COURT DID NOT SUFFICIENTLY CONSIDER ALTERNATIVES TO THE TERMINATION OF PARENTAL RIGHTS.
D. THE TRIAL [COURT'S] LEGAL DETERMINATION THAT THE PERMANENT TERMINATION OF [N.Q.N.'s] RELATIONSHIP WITH HIS MOTHER WOULD NOT DO MORE HARM THAN [GOOD] WAS NOT JUSTIFIED WHEN BALANCED AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE SHOWING THE CHILD'S PROFOUND AFFECTION FOR HIS MOTHER AND THE COURT'S RELIANCE ON THE COMMITMENT OF THE FOSTER PARENTS FROM WHOM THE CHILD HAS SINCE BEEN REMOVED.
POINT II. THE TRIAL COURT'S APPLICATION OF NEW JERSEY'S TERMINATION OF PARENTAL RIGHTS STATUTE AS APPLIED IN [D.N.'s] CASE WAS VOID FOR VAGUENESS[.] (NOT RAISED BELOW).
Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Such actions require proof by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. L.C., 346 N.J. Super. 435, 439 (App. Div. 2002). Termination actions brought under N.J.S.A. 30:4C-15.1a are decided under a four-part "best interests of the child" standard, first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-611 (1986), and now codified in N.J.S.A. 30:4C-15.1a. Under that standard, parental rights may be terminated only when:
(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 [D]ivision 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.
The four prongs of the best interests test "are neither discreet nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005). The considerations are fact-sensitive. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). Moreover, the Court has instructed trial courts that in deciding a termination action "all doubts must be resolved against termination of parental rights." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
On appeal, factual findings and conclusions of the trial judge are generally given deference, especially "when the evidence is largely testimonial and involves questions of credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). "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." F.M., supra, 375 N.J. Super. at 259.
Accordingly, "an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "The appellate court should 'exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter.'" Ibid. (quoting Rova Farms, supra, 65 N.J. at 484). However, our obligation to defer to the trial court "does not extend to issues of law." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).
In Point II, D.N. argues for the first time on appeal that N.J.S.A. 30:4C-15.1a is void for vagueness. D.N. does not challenge the statute as being facially vague. Rather, D.N. argues that the statute is void as applied to her because the statute did not sufficiently inform her concerning the nature of the proscribed acts or omissions that would result in the termination of her parental rights.
"It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). D.N. did not raise this issue in the trial court. Because the issue does not pertain to the jurisdiction of the trial court or to a matter of great public importance, D.N. not challenging the statute as facially vague, but only as applied to her, we will not consider the merits of the argument.
We now address D.N.'s challenges to the trial court's determination that DYFS proved all prongs of the best interests of the child standard. N.J.S.A. 30:4C-15.1a. In considering D.N.'s arguments, we acknowledge that this is a close case with DYFS not having presented evidence of serious physical abuse by D.N. of her son or of D.N. abusing illicit drugs or alcohol. Nor is there any evidence of D.N. abandoning the child; rather, the evidence establishes that D.N. visited with her son at every possible opportunity. The case concerns the birth of a child to an immature teenager who, although not able to independently care for her child, has evidenced a strong love for him. We now address D.N.'s challenge to the trial court's determination that DYFS proved the first prong of the best interests of the child standard.
The trial court determined that DYFS had proven the first prong of the best interests of the child standard because D.N. gave birth to her son while incarcerated and failed to provide proper care to him for several months. "The substantial risk of physical, psychological, or emotional harm by a parent who's institutionalized and incarcerated, and cannot have the child, and, thus, the ability to nurture the child properly for a number of months is the reason why the first prong has been proven to this [c]court."
D.N. argues that we should reverse "because there was a lack of . . . credible evidence to support the court's finding on this prong, and such a finding is a result of an incorrect application and interpretation of the applicable statute and case law." D.N. contends that the court improperly concluded "without any scientific testimony, or expert opinion, that as a result of the child being away from his mother, because she was incarcerated, he suffered a substantial risk of physical, psychological, or emotional harm." We disagree, although for different reasons than expressed by the trial court.
The first prong of the best interests of the child standard requires DYFS to establish that a "child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1a(1). "Rather than focusing on a single or isolated harm, the standard may be triggered by an accumulation of harms over time." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004). "The harm shown under the first prong must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352.
A parent's incarceration is "probative of whether the parent is incapable of properly caring for the child or has abandoned the child. It is, therefore, a factor that is unquestionably relevant to the determination of whether the parental relationship should be terminated." In re Adoption of Children by L.A.S., 134 N.J. 127, 136-37 (1993). Nevertheless, it "is by no means settled or obvious that incarceration is so inimical to that relationship as to justify its termination as a matter of law." Id. at 137. Although L.A.S. concerned a parent who was incarcerated for life, not one who was incarcerated only at the time of the child's birth, the same principle applies here. N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006).
In S.A., the child's mother was incarcerated at the time of the child's birth. Id. at 528-29. On filing a complaint for termination, the trial court terminated the mother's parental rights, finding that the mother's incarceration contributed to fulfilling the first prong. Id. at 531. We reversed. Id. at 533. Regarding the application of the mother's incarceration to the first prong, we stated:
Nonetheless, "[i]mprisonment necessarily limits a person's ability to perform the 'regular and expected parental functions,' N.J.S.A. 9:3-46a." [L.A.S., supra, 134 N.J. at 138.] It also may serve to frustrate nurturing and the development of emotional bonds and as a "substantial obstacle to achieving permanency, security, and stability in the child's life." Id. at 139 . . . . Additionally, the nature of the crime causing the incarceration bears upon the issue of parental fitness and the potential for rehabilitation. [Id. at 141-43]. The length of the custodial term is likewise an important consideration. Id. at 140.
Any hearing conducted to determine whether a parent's rights should be terminated must be based upon a "broad inquiry" as to each of these circumstances and their significance in relation to the overriding questions of parental fitness and the best interests of the child. Id. at 143. The court must consider the nature of the parent's criminal disposition, the extent of any rehabilitation and, with the aid of expert opinion, the need of the child for permanency and stability and whether continuation of the parental relationship will undermine that need. Id. at 144. [Id. at 534.]
Here, the court narrowly focused on the fact that D.N. was incarcerated at the time of N.Q.N.'s birth, separating herself from the child for a period of three months until she was released from the juvenile facility in July 2002. The court did not analyze the first prong under the "broad inquiry" as required by S.A.
Ordinarily, we would reverse, determining that the trial court erred in finding that DYFS proved the first prong by clear and convincing evidence. However, the error is harmless because, for reasons not expressed by the trial court, DYFS proved the first prong of the best interests of the child standard. Appeals are taken from judgments, not from oral opinions or written decisions. Glaser v. Downes, 126 N.J. Super. 10, 16 (App. Div. 1973), certif. denied, 64 N.J. 513 (1974). An order of judgment will be affirmed on appeal if it is correct, even though the judge gave the wrong reasons for it. Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968), abrogated on other grounds, Commercial Realty & Res. Corp. v. First Atl. Properties Co., 122 N.J. 546 (1991).
We conclude DYFS proved that not only was D.N. unable to provide nurturance and support for her son while incarcerated, but also failed to provide a stable home for him for the first year of his life after she was released from the juvenile facility. Because of D.N.'s inability to properly care for her son, he was forced to remain in a shelter for approximately one year until placed in foster care. This prolonged period of not properly caring for her son, together with the initial separation while incarcerated, satisfied the first prong of the standard. See In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (holding that "the two components of the harm requirement, 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").
We next address D.N.'s arguments that the trial court erred in determining that DYFS proved the second and third prongs of the best interests of the child standard. As to the second prong, D.N. contends that the evidence established that it was reasonably foreseeable that she would be able to provide a safe and stable home for her son in the future. D.N. asserts that the only substantiated incident of abuse and neglect found against her was based on her incarceration at the time of her son's birth; not while he lived with her at Isaiah House. Lastly, D.N. argues that her son was only removed from her in April 2006, after she was dismissed from the Isaiah House program, "because DYFS was not able, with all the resources available to them, to find a program for [D.N.] who did not have a substance abuse problem," contending that if she "had tested positive for some substance she would have been able to go into any number of programs for substance abusing mothers and their children."
D.N. challenges the trial court's determination on the third prong that DYFS took reasonable efforts to reunify her with her son, describing DYFS's efforts as "almost nonexistent." D.N. again questions why DYFS makes funds available for substance-abusing and mentally-challenged patients with children, and yet fails to provide a residential program suitable for her and her son.
We have considered the arguments advanced by D.N. in light of the record, and for the reasons stated by the trial court in its oral decision of August 10, 2007, we conclude that DYFS proved the second and third prongs of the best interests of the child standard by clear and convincing evidence. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comments.
Termination under the statute is not limited to intentional harms inflicted by a parent or to harms caused by a parent's abuse of drugs or alcohol. Although those factors may be considered by the court, the standard under the statute remains the "best interests of the child." A.G., supra, 344 N.J. Super. at 434.
D.N. was provided fifteen months of supervision at Isaiah House to prove that she could parent her son in a supportive environment. Nevertheless, as noted by the trial court, D.N. "appears to have made no real or substantial push to put her parenting life together." D.N. was dismissed from the Isaiah House program because of her failure to follow its rules although she had been directed by the first trial judge to abide by the program's rules. From time of dismissal, she has moved several times without stable employment. As noted by her own expert, Dr. Johnson, at time of trial, D.N. was still not able to independently parent her son.
DYFS met its obligation under the third prong by providing multiple services to D.N. and her son, including placement at Isaiah House, psychological assessments, anger management counseling, parenting classes, continued visitations for D.N. with her son through Tri-City, and early intervention reports. Although it is unfortunate that no other residential programs were available to D.N. after her removal from Isaiah House, DYFS made inquiries into other programs; yet, none of them came to fruition. As to the second part of the third prong, DYFS considered alternatives to terminating the parental rights by investigating placement of N.Q.N. with D.N.'s sister and her great maternal aunt. The aunt declined and the sister was ruled out.
Lastly, we address D.N.'s challenge to the trial court's determination as to the fourth prong, contending that the court did not properly weigh Dr. Johnson's opinion that termination of her parental rights would have a negative, adverse effect on her son. D.N. asserts that the court placed too heavy of an emphasis on the then foster family, the D's, love for N.Q.N., and their commitment to adopt in analyzing the fourth prong. D.N. urges that we reverse, asserting that the underpinnings of the court's determination that termination would not do more harm than good has proved false by the child's removal from the D's custody in March 2008. We agree that the post-judgment removal of N.Q.N. from the D's custody has dramatically changed the factual landscape supporting the trial court's decision, and requires reversal.
Under the fourth prong, the court must "assess whether termination of parental rights will do more harm than good." M.M., supra, 189 N.J. at 286 (citing N.J.S.A. 30:4C-15.1a(4)). The fourth prong "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007)). "Inherent in the fourth factor is that a child has a 'paramount need for a permanent and defined parent-child relationship.'" N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div.) (quoting In re Guardianship of J.C., 129 N.J. 1, 26 (1992)), certif. denied, 180 N.J. 456 (2004).
The inquiry "to be addressed under [this] prong 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. Additionally, "[a] child's need for permanency is an important consideration under the fourth prong." M.M., supra, 189 N.J. at 281. Thus, as recently expressed by Justice Albin in E.P., supra, the ultimate question under the fourth prong is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent. It has been "suggested that
[a] decision to terminate parental rights should not simply extinguish an unsuccessful parent-child relationship without making provision for . . . a more promising relationship . . . [in] the child's future." [E.P., supra, 196 N.J. at 108 (citation omitted).]
Absent the post-judgment removal of N.Q.N. from the D's custody, we would have affirmed the trial court's determination that DYFS had satisfied the fourth prong. Dr. Weitz opined that D.N. was unfit to parent and that D.N. would not be able to independently parent in the near future. Dr. Weitz concluded that N.Q.N. would probably experience short-term harm through termination of his mother's parental rights, but that the harm would not be severe or enduring. Accordingly, she recommended termination of D.N.'s parental rights to her son. To the contrary, although Dr. Johnson agreed that D.N. was not presently able to independently parent her son, he did not recommend termination of parental rights. Rather, he recommended DYFS consider an alternative to termination of D.N.'s parental rights that would preserve her relationship with her son, similar to the Isaiah House program. In weighing the opinions of the two experts, the trial court relied more heavily on that of Dr. Weitz, rather than Dr. Johnson.
A trial court has the opportunity to evaluate the "credibility of the expert's testimony and the court's fact-findings based thereon" and is "better positioned to evaluate the witness' credibility, qualifications, and the weight to be accorded [their] testimony." D.M.H., supra, 161 N.J. at 382. Given this deference, the trial court's decision to give greater weight to Dr. Weitz's opinion than to Dr. Johnson's opinion will not be disturbed.
The decision to terminate parental rights was also supported by the trial court's conclusion that N.Q.N. is in need of permanency in his life. At trial, N.Q.N. was five-years-old and had not been provided a stable environment with his mother, D.N. having been dismissed from Isaiah House for failure to follow its rules. Nor had D.N. obtained regular employment or housing for herself and her son.
Although both experts agreed that N.Q.N. will suffer from some degree of short-term loss from the termination of his mother's rights, he cannot and should not be expected to wait for his mother to "get herself together." C.S., supra, 367 N.J. Super. at 114. "A child is not chattel in which a parent has an untempered property right." Id. at 110. Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement. Id. at 111. "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." Ibid.
Nevertheless, although the trial court indicated that in deciding whether DYFS met the fourth prong of the best interests of the child standard it was focusing primarily on the parenting fitness of D.N. rather than the bonding strengths of the child vis-à-vis D.N. or the foster parents, we conclude that one of the primary understandings of the experts and the court has so dramatically changed that we are constrained to reverse. Our review of the record supports D.N.'s argument that woven like a supporting thread throughout the proceedings and into the trial court's opinion was the understanding that the D's were committed not only to continue to provide N.Q.N. with their love and affection, but also to adopt him, providing the permanency that Dr. Weitz opined, and the trial court found, was imperative. Unfortunately, despite the D's original intentions to adopt N.Q.N., he was removed from their home on March 12, 2008.
In Dr. Weitz's report of December 20, 2006, she made specific findings as to the stability that the D's were providing to N.Q.N. and to their commitment to adopt him:
When [the first trial judge] previously recommended that [D.N.] be given additional opportunities to prove she could parent [N.Q.N.], she was the most consistent adult figure in his life. That situation has changed. Mr. and Mrs. [D] have twice shown that they are committed to caring for [N.Q.N.] permanently. They feel so strongly about [N.Q.N.'s] health and well-being that they have gone beyond their intent to be a "strictly adoptive" home in order to give him love and stability. While [N.Q.N.] maintains special affectional ties to his birth mother, I believe he is being harmed by maintaining a relationship with her. Her behavior toward him is unpredictable. She has been unable to establish a secure bond with him. Continued attempts to work with [D.N.] toward reunification keep [N.Q.N.] from achieving permanency. Although [N.Q.N.] may suffer short-term harm by terminating contact with his birth mother, I do not expect this harm will be severe or enduring. In my opinion, termination of [D.N.'s] parental [rights] will not do [N.Q.N.] more harm than good. [N.Q.N.] has special needs. In addition to developmental delays, he is emotionally fragile. Numerous moves and failed placements provided insufficient time for him to pass through the normal stages of bonding most children experience from birth until about three or four years-old. Without that experience, [N.Q.N.] will have emotional, behavioral, and/or learning problems throughout his lifespan. Therefore, permanency is a priority for him. Mr. and Mrs. [D] are providing [N.Q.N.] with the nurturing, guidance, stimulation, continuity of care, and unconditional love that promotes healthy bonding in children. . . .
While [N.Q.N.] has not been in the [D's] care long enough for true bonding to occur, I believe that he would experience harm if removed from their care. . . . [N.Q.N.]
[h]as the best chance of achieving his fullest potential as a child and an adult if he is adopted by Mr. and Mrs. [D]. [(emphasis added).]
In its decision the trial court found:
There's a further factual conclusion, and that is the seeing hesitation exhibited by the foster parents in their commitment to [N.Q.N.] as to permanency. . . .
Do I believe that Mr. and Mrs. D are committed, even though this is not necessarily a factual complaint that I am making here, I have set forth that the [c]court believes that they are committed. Any presentation is, or has been founded upon the problems, emotionally, of being caught up in this process, as I've mentioned, but surely one of the chief reasons for the [c]court's conclusion of this commitment by the foster parent[s] is the employment promotion that had been offered to Mrs. D, and which was promptly, after some thought, rejected by her. This satisfied this [j]udge that the joint commitment of Mr. and Mrs. D to the child's placement within their family is sound and unwavering.
As stated at the outcome of our legal analysis, this is a close case. With the change of the then foster family's commitment to adopt, we reverse and remand to the trial court for reconsideration. Pending the trial court's decision on remand, the court shall direct DYFS to re-establish visitation between D.N. and her son for such a reasonable period of time and on such frequent basis as the court determines reasonable in order to re-establish the maternal-son relationship that pre-existed the court's order of August 10, 2007. On remand, the trial court shall reconsider the four prongs of the best interests of the child standard and permit the parties to present additional evidence as to any other change of circumstance that may have occurred since the court's prior decision.
Reversed and remanded. We do not retain jurisdiction.