April 5, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF: M.M.Q. AND J.F.Q., MINORS.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF: M.M.Q. AND J.F.Q., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, FG-11-90-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically March 5, 2010
Before Judges Payne, Miniman and Waugh.
In these consolidated appeals, L.C., the mother of daughters M.M.Q. (older daughter) and J.F.Q. (younger daughter), and M.J.Q., the husband of L.C., the biological father of the older daughter and the legal father of the younger daughter, appeal an order terminating their parental rights to the two children. Both argue that the Division of Youth and Family Services (DYFS) failed to meet any of the prongs of the best interest test set forth at N.J.S.A. 30:4C-15.1a. We affirm.
The record reflects that the older daughter was born on December 1, 2004 when L.C. was seventeen years of age and M.J.Q. was eighteen. L.C. and M.J.Q. married on June 5, 2006. The younger daughter was born on September 29, 2007. M.J.Q. is not the biological father of the younger daughter, who L.C. sometimes claims was the product of rape but may have been the product of a consensual relationship.
In January 2005, L.C., the older daughter, and L.C.'s two siblings were removed from the residence of L.C.'s mother by DYFS because of the mother's drug abuse. They were placed with a family friend. A psychological examination of L.C., conducted by Dr. Lauren Rossi on February 3, 2005, disclosed that L.C. suffered from depressive and post-traumatic stress disorders. The doctor recommended that L.C. and her daughter be placed in a long-term, structured, independent living program for young mothers and that therapy be provided to L.C. to address her psychological disorders and history of cutting behaviors.*fn1 On February 9, 2005, the friend with whom L.C. and her daughter was placed advised DYFS that L.C. and M.J.Q. had engaged in an altercation that resulted in L.C.'s arrest. The family friend also reported that L.C. was again pregnant*fn2 and that she had again attempted suicide. The friend requested that L.C. and her daughter be placed in foster care.
On March 1, 2005, L.C. was placed in a foster home. Her daughter was first placed at Angel's Wings, and after thirty days, was placed in foster care apart from L.C. Efforts to place L.C. in the PATH program were rejected by her on the ground that she would prefer to live with M.J.Q. Although, during the Spring of 2005, L.C. attempted to complete high school and, by May 2005, was attending counseling and looking for a job, on June 23, 2005, L.C.'s foster mother informed DYFS that L.C. should be placed elsewhere, because she did not get along with the other girls in the home.
On July 7, 2005, the older daughter was moved to the home of her maternal great uncle, S.C. (uncle) and his girlfriend of thirteen years, A.S. (aunt), but one month later, both the daughter and L.C. were placed in an extended family care home through the Children's Home Society of New Jersey (CHS). The placement did not proceed smoothly, as L.C. was rude to her foster mother, disruptive, and she engaged in angry outbursts. On September 23, 2005, the foster mother informed DYFS that, as the result of L.C.'s behavior, which she described as "out of control," she would not permit L.C. to return to her home. She additionally informed DYFS that she was concerned about the level of care that L.C. was providing to her baby, and she feared that L.C. would, one day, hurt the child. DYFS claims that L.C. and her daughter were thereupon placed in temporary respite care.*fn3 During this period, L.C. was enrolled in high school and in an intensive parenting program. However, on October 27, 2005, the court ordered that L.C. be permitted to return to her mother's residence and that her daughter be placed again with her aunt and uncle.
In November 2005, L.C. was dismissed from ongoing abuse and neglect litigation instituted against her mother because she had reached the age of eighteen. However, DYFS was ordered to file a Title 9 complaint against L.C. as the result of her noncompliance with services and her daughter's continued need for placement.*fn4 Supervised visitation with the daughter was arranged through PEI kids, and DYFS was ordered to arrange for in-home counseling for L.C. through the Family Service program.
In December 2005, L.C. advised DYFS that she had been employed by Party City since November and that M.J.Q. had enlisted in the military and was stationed in Virginia. DYFS confirmed with M.J.Q. that he had enlisted in the Navy and determined that he was interested in caring for his daughter once he obtained housing. However, M.J.Q. did not follow up in any respect. He received an "other than honorable" discharge from the service in November 2006, allegedly as the result of fighting.
In January 2006, L.C. agreed to comply with services provided by DYFS, including parenting skills classes, a psychological evaluation, a substance abuse evaluation, individual therapy, and regular visitation. However, compliance with services was spotty. L.C. was enrolled in parenting skills classes beginning on March 15, 2006. In April 2006, she was briefly incarcerated for simple assault upon a girlfriend of M.J.Q.
At a hearing conducted on April 4, 2006, the supervising Family Part judge entered a finding of abuse and neglect against L.C. Although the judge's order does not appear in the record, the complaint for guardianship filed by DYFS alleges that the finding was entered after L.C. "admitted that [she] failed to engage in services including anger management and a psychological evaluation and had not been able to offer [her daughter] a safe and stable home."
According to the complaint, on April 7, 2006, L.C. was evaluated by Dr. Vivian Schnaidman, who found that, although L.C. loved her daughter, she did not appear to be well equipped to be a parent to the child.*fn5 The doctor recommended psychotherapy and possible administration of psychotropic medicine.*fn6 In an order entered on May 25, 2006, the Family Part judge required that DYFS implement immediately the services recommended by Dr. Schnaidman, and that they "should be in place" prior to the next court hearing, scheduled for June 22, 2006. Although services were not provided by the specified date, it appears that they were offered by July 26, 2006.
On June 5, 2006, L.C. and M.J.Q. were married. However, following his discharge from the Navy and return to New Jersey in November 2006, M.J.Q. engaged in multiple episodes of domestic violence against L.C. Injuries sustained by L.C. resulted in hospitalization and a termination of her employment. M.J.Q. was incarcerated in the Mercer County Correctional Institute from March 10, 2007 to early September 2007 on charges of armed robbery and unlawful possession of a handgun. Upon his release, M.J.Q. took up residence with his mother. He was reincarcerated on October 19, 2007 and remained in pretrial detention at the time of the termination trial. L.C. and M.J.Q. separated prior to his reincarceration, but no complaint for divorce had been filed.
On July 21, 2006, L.C. commenced an intensive supervision program administered by CHS that provided parenting skills classes and individual counseling. However, on October 26, 2006, L.C. advised a representative from HomeFront, an organization aiding the homeless, that she was homeless and needed assistance. On December 6, 2006, she was ordered to comply with services offered to her and to obtain stable housing. CHS was ordered to provide counseling on domestic violence to L.C., but it does not appear that L.C. participated in those services.
In an interview by DYFS with the aunt and uncle, conducted on January 9, 2007, they were informed that the older daughter's case had been transferred to the adoption unit. The foster parents responded that they had always wished the child to be reunited with her biological mother, but that they did not feel that L.C. was ready to parent. If the rights of the biological parents were terminated, the aunt and uncle indicated a willingness to adopt. Also in January 2007, CHS advised DYFS that L.C. had been attending parenting classes and individual therapy. She was living with a former foster mother at the time and was contributing to her rent, but they had no heat.
After L.C. was informed in February 2007 of DYFS's plan for adoption of her daughter, L.C. became inconsistent in her attendance at counseling and in parenting classes. Also in February 2007, DYFS learned from the aunt and uncle that L.C. was three months pregnant and that she planned to keep the baby. During the same month, the aunt informed DYFS that L.C. had quit her job, and that the apartment she was living in had no heat. By March, L.C. had moved to church-sponsored housing. CHS reported that month that the organization supported relative adoption of the older daughter and that L.C. was not stable enough for reunification with her. Indeed, a month later, it was reported that L.C. was sleeping on the floor and lacked food.
As stated previously, on March 10, 2007, M.J.Q. was arrested for armed robbery and unlawful possession of a firearm.
At a permanency hearing conducted on March 22, 2007, the judge ordered that DYFS file a guardianship petition by May 14, 2007, observing that DYFS had provided reasonable efforts toward reunification and that the circumstances leading to the older daughter's removal had not changed. The petition was filed on May 24, 2007. On May 30, 2007, DYFS requested that CHS close its case with L.C., and abuse and neglect litigation was dismissed on the following day.
In July 2007, L.C. was evaluated by psychologist Jonathan Mack and a bonding evaluation was conducted.*fn7 At that time, she reported that she had been living at HomeFront's Huchet House, a group home for pregnant women and new mothers, for approximately one month and that she was studying for her GED and taking computer and parenting classes. Dr. Mack diagnosed L.C. as suffering from chronic post-traumatic stress disorder and personality disorder not otherwise specified (NOS) with paranoid and borderline personality features. Dr. Mack concluded:
Based on the information available to me,
[L.C.] does have a strong bond with her daughter. [The older daughter] is strongly bonded to her mother. It is the judgment of this examiner that it would be detrimental in the long-term interest of [the daughter] to not have her mother in her life.
[L.C.] does have serious psychiatric conditions that have not yet fully responded to treatment, as of the time of this evaluation. Due to the fact that these problems are still ongoing, [L.C.] does require ongoing, intensive mental health treatment. It is judged that her emotional instability is such that she is not yet fully fit to be an independent parent of [her daughter] at this time. On the other hand, it is obvious that [the daughter] is bonded with her mother. I would recommend a compromise situation in which [the daughter] remains with her foster parents, but is able to have ongoing visitations with her mother. Such a compromise would perhaps be met by kinship legal guardianship with the foster parents, instead of full adoption. This also takes into account the young age of [L.C.] and allows her the possibility that she will continue to grow and adapt over time.
Additionally, the doctor noted that part of L.C.'s difficulties might be the result of multiple concussions, and he recommended a full neuropsychological evaluation.
On August 29, 2007, L.C. was evaluated by Dr. Amy Becker-Mattes at the request of DYFS. Dr. Becker-Mattes diagnosed L.C. as suffering from an intermittent explosive disorder and a depressive disorder NOS, as well as a personality disorder NOS with narcissistic, depressive, schizoid, antisocial and borderline features. The doctor noted L.C.'s "extremely difficult childhood," which included physical and emotional abuse, multiple rapes, and two psychiatric hospitalizations. The doctor noted additionally that L.C.'s "inability to comply with DYFS requirements" has interfered with efforts at reuniting her with her daughter.
[L.C.] has been involved in physical fights, has resisted following rules in a variety of residential placements and had one episode of incarceration. Although there have been some periods when [L.C.] has involved herself in required services such as parenting classes, individual therapy and visitation, there ha[s] also been a significant amount of backsliding and problems, such that she has been unable to provide a "safe and stable" environment for her child. Most recently [L.C.'s] DYFS worker, Jackie Clarke, reported that she had heard that [L.C.] is squandering and/or mismanaging her money and food stamps while residing at Huchet House and that [L.C.] is disregarding the rules of the program in which she is enrolled. She has been involved in physical fights on a number of occasions, both recently and in the past.
Although [L.C.] professes to love her child and does interact with [her daughter] very nicely... there is little indication that she comprehends and/or is able to follow through on the responsibilities of parenthood. She is unable to care properly for herself, let alone provide for a child.
[L.C.] is currently functioning in a manner that indicates she is unable to manage her own affairs effectively. She has not been able to take full advantage of the services offered by DYFS. Her behavior continues to be erratic and problematic. It is my professional opinion that it appears to be highly unlikely (based both on her psychological profile and her behavior in life), that she will be able to independently parent a child anytime in the near future.
An evaluation of the bonding between L.C.'s daughter and her foster parents was favorable. Dr. Becker-Mattes reported that a strained relationship existed between the aunt and L.C.
In addition to the foregoing evaluations, on September 19, 2007, Dr. Becker-Mattes interviewed M.J.Q. and conducted an evaluation of the bond between him and his daughter. At the time of the interview, M.J.Q. had been released from jail for approximately one week. After interviewing M.J.Q., the doctor made the following observations:
[M.J.Q.] appears to be someone with confusing circumstances and with overwhelming demands on him at the present time. This seems to be due to his relationship with [L.C.] and DYFS and with his recent release from jail. [M.J.Q.] has a good deal of pressure on him to secure employment as well. [M.J.Q.] expressed concern for [his daughter] and says that he wants to be her father, but seems to have only the vaguest notion of what would be involved in order to function in that capacity. It seems that he would like to take care of [his daughter,] but at present, he is unable to care even for himself. He needs to establish himself in the community, after his seven month incarceration. According to the Verified Complaint there are also some safety concerns about [M.J.Q.'s] associations prior to his incarceration.*fn8
Following an observation of the interaction between M.J.Q. and his daughter, Dr. Becker-Mattes concluded that the father was "pleasant" with his child, but "there was no indication of any 'special' relationship between them." The doctor noted that it would be unrealistic to expect otherwise, since M.J.Q. had spent the prior seven months in jail and had never lived with the child.
On September 19, 2007, L.C. was involved in an altercation with another Huchet House resident, and both were treated in the emergency room. As a consequence, both women were to be discharged from the program. On September 29, 2007, the younger daughter was born and, upon the application of DYFS, was placed in foster care with her sister. The guardianship petition was amended to include that daughter.
In October 2007, it was reported that L.C. and M.J.Q. had reunited, but their reconciliation was short-lived. At a family team meeting held on October 29, 2007, L.C. reported that she was again attempting to complete high school and hoped to attend college. She was taking computer classes through Huchet House, where she remained until February 2008, and she attended parenting classes for three hours per day, individual counseling every Friday, and group therapy every other week. She was also volunteering as a babysitter for young children on Monday evenings. She received occupational counseling through the Welfare Department's Work First NJ program. L.C. was referred to CHS for individual therapy and medication, if needed. However, treatment was not arranged until May 2008.
On November 1, 2007, Dr. Becker-Mattes wrote, in response to an inquiry by DYFS, that she did not recommend placing L.C. in a residential mother-child treatment facility with her younger daughter at that time. She stated:
As I indicated in my psychological evaluation of [L.C.], there are a number of issues that I feel should be addressed before [she] is considered as being able to possibly have primary responsibility for a baby. Of special concern is her tendency toward anger and physical altercations and the fact that there were indications on the testing that [L.C.] has "a preponderance of characteristics consistent with that of known physical child abusers." There was also evidence of [L.C.] having a fair amount of emotional lability and behavioral inconsistency.
[G]iven [L.C.'s] history of an inability to care for her older child, it seems inappropriate to place her baby with her, unless she makes some significant strides that would indicate her ability to now function as a competent parent.
A February 11, 2008 letter from Harriet Sharlin, a psychologist working at Huchet House, reported that "[L.C.] is a very bright, attractive and determined young woman. I have watched as she has acquired interpersonal skills, especially anger management, and used them appropriately in the group." The doctor additionally reported that L.C. consistently requested to see her children throughout the course of treatment, and she recommended that L.C. be allowed to raise the children.*fn9
In a February 25, 2008 report, the DYFS caseworker assigned to the two girls indicated that "during last court hearing it was stated [L.C.] has done a 180 degree change" and that the judge had inquired why the younger daughter could not be returned to her. The judge instructed DYFS to determine whether Dr. Becker-Mattes' recommendation had changed in light of the updated information. The report stated further that there had been no recommendation to return the older daughter to L.C. because of the bond she had developed with her foster parents. Nonetheless, the aunt suggested that, if the younger daughter were returned, the older daughter should be returned as well so that the sibling bond would remain intact. According to the caseworker, the aunt thought the older daughter "would do fine" with L.C.
A letter dated April 24, 2008 indicated that L.C. had attended nine out of thirteen anger management sessions, commencing on January 30, 2008, and that she had completed all but one written homework assignment. The first psychotherapy session with the Family Growth Program was scheduled for May 1, 2008.*fn10 However, a letter dated May 20, 2008 indicated that
L.C. had attended only one individual appointment, either canceling or rescheduling the remainder. By September, she had attended four out of nine scheduled sessions. The letter continued:
[L.C.'s] mood would fluctuate from one session to the next. She could be cooperative and engaging, while expressing a desire to be compliant with court ordered services or angry and frustrated. She stated that after over two and a half years of counseling and attending parenting groups, she has not reunited with her children. She indicated that in the past she had been compliant with services and does not know what more DYFS wants her to do.
The letter's author stated that L.C. did "not appear to view therapeutic interventions as helping to relieve deep seated feelings of anger, frustration and resentment which have threaten[ed] her ability to parent. She seems to struggle with her self-concept from being fairly inflated to having negative and painful feelings about herself and her situation." L.C. was said to have claimed a strong bond with her older daughter, but that such a bond with the younger daughter was absent, since the child had been taken from her at birth.
On September 24, 2008, Dr. Becker-Mattes performed a reassessment of L.C. and the bonding between her and her two daughters. Dr. Becker-Mattes noted:
Since the time of the previous Assessment of Attachment (9/17/2007), [L.C.] has been generally cooperative and has completed most of the rehabilitative efforts that DYFS has required of her. She has finished Anger Management and Parenting classes. She received her high school diploma in June of this year from a daylight/twilight program.... [L.C.] is currently employed at two jobs. She works at a laundromat 32 hours per week and she is also "on call" at a nursing and rehabilitation center in Trenton, doing housekeeping. [L.C.] lives in an apartment provided by HomeFront and is currently receiving food stamps as well.
However, the doctor noted that she had not attended psychotherapy since mid-August, and her prior attendance had been spotty. After observing L.C.'s interactions with her children, Dr. Becker-Mattes faulted L.C. for changing the diaper of the younger daughter on her lap, not washing her hands, and then feeding the children a snack. Additionally, the doctor observed what she characterized as L.C.'s preference for the older daughter, but she questioned the quality of her interactions with this older child. In conclusion, the doctor acknowledged the improvements in L.C.'s functioning, but she determined that she seemed to display a good deal of underlying psychopathology, resentment and antagonism. The doctor stated:
Given the questions that remain about her functioning, in conjunction with the quality of her interaction with her children, it is my professional opinion that
[L.C.] should not be considered as the primary caretaker of [her daughters].
Two days prior to evaluating L.C. and her daughters, Dr. Becker-Mattes interviewed the aunt and uncle and assessed their relationship with their foster children. During the interview, the aunt expressed her opinion that L.C. preferred her older daughter and remained unhappy regarding the circumstances of her pregnancy with her second child, which the aunt stated was the result of consensual sexual relations with one of several possible men. The aunt additionally suggested that the older daughter would suffer harm if only the younger were cared for by L.C. Following interviews with both foster parents and a bonding study, Dr. Becker-Mattes found a bond to exist between the foster parents and the children, and she concluded that "[t]o separate these girls from these adults could potentially cause them psychological harm."
On December 1, 2008, Dr. Becker-Mattes reevaluated M.J.Q., who was produced to her handcuffed and in leg shackles as the result of an incident in the jail in which he was housed. During the course of the interview, M.J.Q. disclosed that he had an additional daughter by a different mother, born on July 6, 2006, one month after his marriage to L.C. He knew nothing of the whereabouts of that child. In a report summarizing the interview and testing conducted at that time, Dr. Becker-Mattes concluded:
Based on the results of this current evaluation and the previous assessment done on 9/6/2007, it is this clinician's professional opinion that: [M.J.Q.'s] history of being physically abusive; his poorly thought out behavior and questionable judgment; his unstable relationship with [L.C.]; his troubled involvement with authorities; his incarceration; and his minimal or nonexistent relationship with his two children; all raise concerns about his ability to conduct himself in such a way so as to be an adequate parent to [the older daughter]. Although he appears to have good intentions toward the child and he thinks about her (i.e. he remembered her birthday), there has been no concrete evidence that he can follow through in an effective and timely manner. Regrettably, it continues to be my professional opinion that he will not be able to assume his parental responsibilities with any degree of certainty, any time in the foreseeable future.
In or around January 2009, a confrontation occurred between L.C. and the aunt, during which L.C. banged on a glass door, shouted obscenities, and allegedly threatened the aunt with a pocket knife. The older daughter was alleged to have been traumatized by the events, which she witnessed. The police were called, but declined to make an arrest. L.C.'s visitation with her daughters through PEI Kids was suspended as the result of this incident.
Defense psychologist Mack evaluated L.C.'s parental fitness following interviews and evaluations of L.C., the children, and their foster parents occurring in February 2009. He, like Dr. Becker-Mattes, noted a vast improvement in L.C.'s functioning, stating that she had just commenced attending criminal justice classes at Mercer County Community College, was employed, and maintained relationships with a former foster mother, her psychologist at Huchet House, and her supervisor at HomeFront. Additionally, the doctor noted that L.C. had developed a stable year-long dating relationship with a car salesman in his later thirties, who was "very supportive of her schooling and of her getting her children back." Dr. Mack concluded:
At this time, it is this examiner's opinion that [L.C.] has made substantial, real and significant improvements and is in a much better place to assume parental responsibilities than she was at the time of the last evaluation in July of 2007. With this stated, however, [L.C.] continues to have problems from her Borderline/Paranoid Personality Disorder with apparent emotional outbursts at the foster mother still continuing. Other than that, however,
[L.C.] appears to be doing extremely well overall in terms of work and school and in handling her life....
It is this examiner's opinion that [L.C.] is well on the way to becoming fit as a parent. Psychotherapeutic treatment should continue.
It is this examiner's opinion that [the daughters] do have a secure bond and attachment to the foster parents, a bond that is more secure than to their biological mother, [L.C.]
Doctor Mack recommended as "the ultimate, best resolution of this situation" either kinship legal guardianship to give L.C. more time, or "gradual reunification over an extended period of time, at least 6 to 12 months."
Trial of the matter occurred between March 9, 2009 and April 13, 2009. At the trial, testimony was offered by four DYFS employees, Dr. Becker-Mattes, Dr. Mack, and L.C. M.J.Q. did not testify.
Defense witness Mack testified consistently with his written report, summarizing his opinion of L.C. by stating:
I felt that [L.C.] is generally speaking on a more stable plane emotionally. She has been more focused and goal directed in her tasks to make herself a more responsible person in general. I felt that generally speaking... she presents less as a borderline personality disorder than she did when I first evaluated her but that she still has some tendencies towards emotional instability, whether on an organic or just psychogenic basis. That does continue to pose a concern so, from a fitness standpoint, I don't think that the treatment is completely done and that some further treatment would be necessary prior to reunification if this were to occur.
The results of testing disclosed that, overall, L.C. "was less reactive. She's less paranoid, somewhat more stable but still has some issues. So she's moving in the right direction but she's not a hundred percent there yet." The doctor noted no difference in L.C.'s treatment of her two children, and that they were bonded to her, but less deeply than they were to their foster parents. Interactions between L.C. and the aunt remained a trigger to L.C.'s personality disorders. In summary, Dr. Mack found that L.C. was "more fit than she was but she's not completely fit yet." It was the doctor's opinion that she would benefit from psychiatric and neuropsychologic evaluations, from a trial of mood stabilizing drugs, and from continued individual counseling to work on anger management issues. If that occurred, it should be possible to determine "within a couple of months" whether treatment was effective. The doctor opined that both children would suffer emotional harm if separated from their foster parents. However he thought it could be mitigated assuming that [L.C.] firstly continues on the path of becoming more emotionally stable, that she gets the treatments that she needs, and I think she'll be less reactive if she has her children back, in regards to [the aunt]. I think that there is enough of a bond with the mother and that the mother has enough support that if the decision were made to move towards reunification, that it could be done without irreparable harm to the children.
On cross-examination, Dr. Mack conceded that both children would require psychological counseling if they were returned to L.C. He admitted as well that if kinship legal guardianship were to be ordered, visitation "would not likely be too amicable."
L.C. testified at trial that she believed her children were taken from her because of her mother's drug use. She stated that she did not care for DYFS, and that she "never did anything to have [her] children taken away."
It was reported by DYFS witnesses that, as the result of the explosive relationship between L.C. and her daughters' foster parents, the foster parents had rejected the idea of kinship legal guardianship and sought adoption.
Following trial of the matter, the presiding Family Part Judge held that DYFS had met its burden of proof on all four prongs of the best interest test, codified at N.J.S.A. 30:4C-15.1a. Both parents have appealed.
When parents resist termination of their parental rights to their children "our function is to decide whether the parent can raise the child without causing harm." New Jersey Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). Relying on J.C., we have noted that
The cornerstone of our inquiry is not whether the parents are fit, but whether they can become fit to assume the parental role within time to meet the child's needs.
"The analysis... entails strict standards to protect the statutory and constitutional rights of the natural parents." The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that the risk of "serious and lasting [future] harm to the child" is sufficiently great that it requires severance of parental ties. [F.M., supra, 375 N.J. Super. at 258 (quoting J.C., supra, 129 N.J. at 10).]
The standard that guides the termination decision is provided by N.J.S.A. 30:4C-15.1a, which requires that, to terminate the parental rights of a child's biological mother and father, the State must prove by clear and convincing evidence that
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child.
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
These standards overlap "to provide a composite picture of what may be necessary to advance the best interests of the children." F.M., supra, 375 N.J. Super. at 258 (citing In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999)). Furthermore, the considerations involved in determining parental unfitness are "'extremely fact sensitive'" and require particularized evidence that addresses the specific circumstances of each case. F.M., supra, 375 N.J. Super. at 258-59 (quoting K.H.O., supra, 161 N.J. at 348 (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).
We will not disturb a trial court's factual findings unless they are so unsupportable as to result in a denial of justice and will uphold them when supported by adequate, substantial and credible evidence. F.M., supra, 375 N.J. Super. at 259. In that connection, great deference must be accorded to the trial judge's credibility determinations. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).
We apply these principles when evaluating the claims of L.C. and M.J.Q in connection with their appeals.
We first address M.J.Q. In that connection, our review of the record establishes that the four statutory prongs of the best interest case have been met. The record reflects that M.J.Q. has never resided with, paid support for, or established a meaningful relationship with either his older or L.C.'s younger child. M.J.Q.'s parentage was established through DNA testing in March 2005. The records of PEI Kids disclose that M.J.Q. participated in supervised visitation with L.C. and the older child only on May 5, 2005, June 29, 2005, and July 7, 2005. M.J.Q. was out of the state serving in the Navy from December 2005 to November 2006. During that period, M.J.Q. engaged in sexual relations with another woman that resulted in the birth of an additional child on July 6, 2006. M.J.Q. has no knowledge of that child's whereabouts.
M.J.Q. married L.C. on June 5, 2006. However, it does not appear that they lived together at that time. Although M.J.Q. did on one occasion express an interest in caring for the older child, he did not follow through on that statement in any respect and never again offered to be her caretaker. He was involuntarily released from the Navy, allegedly for fighting.
He has a history of committing severe domestic abuse upon L.C., particularly in the period after his involuntary release from the Navy. Additionally, M.J.Q. has a substantial history of incarceration for first-degree robbery and unlawful weapons possession commencing, pretrial, in March 2007 and continuing, but for a brief period of release, up to and including the time of the termination trial.*fn11 No significant bonding between him and the children was perceived by the State's expert, Dr. Becker-Mattes, who did not regard him as able to assume his parental responsibilities any time in the foreseeable future.
In the circumstances presented, we are satisfied that the first two prongs of the best interest test - that M.J.Q. harmed his children and that the harm is likely to continue because he is unable or unwilling to overcome or remove the harm - have been met by clear and convincing evidence. "A parent's withdrawal of... solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of [a] child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (citing K.H.O., supra, 161 N.J. at 348-49). As in D.M.H., in the present case, M.J.Q. made no effort to care for or protect L.C. or the older daughter while the two were initially in the custody of L.C.'s drug-abusing mother. He did not offer a home to either when L.C. and her daughter were placed in foster care in January 2005, and he did not offer to take custody of the older daughter when she was placed with L.C.'s aunt and uncle in July 2005. He took no steps to care for L.C. and his daughter during the period from August to October 2005 when they were reunited, or thereafter when his daughter was returned to the aunt and uncle's care. Thus, M.J.Q., like D.M.H., "compounded the mother's neglect and contributed to the circumstances that required the eventual placement of the children in foster care." D.M.H., supra, 161 N.J. at 379-80. Thus, even at times when M.J.Q. resided in New Jersey and was not incarcerated, he failed to fulfill his responsibilities as a parent.
Moreover, we recognize that M.J.Q.'s incarceration "is a relevant factor in determining whether the parent-child relationship may be terminated." L.A.S., supra, 134 N.J. at 135-37. That is particularly so in a case such as this in which M.J.Q., convicted of a crime of violence, had not bonded with his children prior to incarceration, made no attempt to see the children once incarceration commenced, and took no responsibility for the children's welfare or upbringing while imprisoned. Id. at 138. We note as well that M.J.Q. will not be released from custody until the midpoint of 2012. We find no evidence that would suggest he will be fit to parent the children at that time, or that a delay in achieving permanency can otherwise be justified. See K.H.O., supra, 161 N.J. at 358-59 (expressing the need for permanency, embodied in the Federal Adoption and Safe Families Act of 1997 and recent amendments to N.J.S.A. 30:4C-15(d)). Thus, the existence of harm to the children as the result of the conduct of M.J.Q. has been demonstrated, as well as his unwillingness or inability to alleviate that harm.
In his brief, M.J.Q. asserts that DYFS failed to provide any services to him to foster unification with his children. This is incorrect. The record reflects, as previously noted, that DYFS offered M.J.Q. supervised visitation with the older daughter through PEI Kids, but that M.J.Q. availed himself of that opportunity on only three occasions. Thereafter, M.J.Q. left the jurisdiction, and shortly after his return to New Jersey, he was arrested and jailed. Nothing suggests that M.J.Q. made his presence known to DYFS in the brief period that he was within the State and out of jail.
Like considerations of parental fitness, an evaluation of the efforts undertaken by DYFS to reunite a particular family must be done on an individualized basis. See L.A.S., supra, 134 N.J. at 139. Services that may address one family's needs will not be helpful to another. Whether particular services are necessary in order to comply with the diligent efforts requirement must therefore be decided with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort. In re Tricia and Trixie H., 493 A.2d 1146 (N.H. 1985) (requiring minimum level of active efforts by parents); In re Kristen B., 558 A.2d 200, 202 (R.I. 1989) ("When planning for reunification with a child, the parent not only should establish and comply with a plan that can provide a sound and constructive family life, but must also perform some minimal act toward the fulfillment of that plan."); Adoption of Mario, 686 N.E.2d 1061, 1066 (Mass. App. 1997) (holding that duty of agency is to engage in reasonable efforts contingent upon mother's fulfillment of her own parental responsibilities and cooperation with agency). [D.M.H., supra, 161 N.J. at 390.]
In the circumstances of this case, which involve a total lack of initiative on M.J.Q.'s part and a history of only sporadic compliance with the visitation services that were provided, we find DYFS's efforts to have been adequate. As the Court has recognized, in circumstances in which one parent has been the custodial parent and taken a primary role in seeking to care for the children, it is reasonable for DYFS to focus its efforts on that parent. Id. at 393. We do not fault DYFS for focusing its efforts on L.C. in the present circumstances.
As a final matter, we agree with the Family Part judge that, as the result of the lack of any particular bond between M.J.Q. and the girls and the existence of a strong bond between the girls and their aunt and uncle, termination of M.J.Q.'s relationship to the two girls will not do more harm than good. As a consequence, we find that the four prongs of N.J.S.A. 30:4C-15.1a have been met.
L.C.'s history is not as clear cut as that of M.J.Q. Ample evidence exists that, from the older daughter's birth in December 2004 to late 2007, L.C. harmed her daughters as the result of her inability to parent them successfully, her noncompliance with services, instability in housing, lack of employment, lack of education, and angry outbursts and other manifestations of emotional instability. During this period,
L.C. manifested an unwillingness and inability to eliminate the harm that she was causing her children. An extended period of foster care resulted.
Thereafter, in 2008, matters improved considerably. L.C. completed high school and, in February 2009, entered college; engaged in counseling, anger management, and employment training through Huchet House in February 2008; and later obtained an apartment and employment. Nonetheless, we note that after L.C. left Huchet House, L.C.'s attendance at psychotherapy sessions, commenced on May 1, 2008, was not consistent. Moreover, at the time of defense expert Mack's evaluation of L.C. in February 2009, he found that L.C. "continues to have problems from her Borderline/Paranoid Personality Disorder with apparent emotional outbursts at the foster mother still continuing." Although Dr. Mack found L.C. to be "on the way" to becoming fit as a parent, he did not recommend reunification at that time, suggesting instead kinship legal guardianship or gradual reunification over an extended period of at least six to twelve months. The doctor opined that L.C. would benefit from psychiatric and neuropsychologic evaluations, from a trial of mood stabilizing drugs, and from continued individual counseling to work on anger management issues. Dr. Mack's opinions had not changed at the time of trial in March and April 2009.*fn12 At that time, the older daughter was five years of age and had been in foster care with her aunt and uncle for approximately four years; the younger daughter, who had been in foster care since birth, was slightly more than one year and one-half in age. Although both were bonded to L.C., their closer bonds were to their aunt and uncle.
Our review of the record satisfies us that the evidence presented with respect to L.C. met the first two prongs of the best interest test. As was the case with M.J.Q., L.C. caused harm to her daughters through her continued inability to parent them, thereby causing them to be placed in foster care. Further, the evidence is sufficient to establish that L.C. was for a long period unwilling to eliminate the harm facing the children, and at the time of trial she remained unable to eliminate that harm. In the meantime, strong bonds had developed between the girls and their foster parents, who have rejected kinship legal guardianship and seek to adopt.
We reject any argument that, in light of L.C.'s improved status, the status quo should have been maintained and any decision on termination deferred. As the Court observed in New Jersey Div. of Youth and Family Servs. v. P.P., 180 N.J. 494 (2004): this Court has long emphasized "New Jersey's strong public policy in favor of permanency." K.H.O., supra, 161 N.J. at 357; see New Jersey Div. of Youth and Family Servs. v. K.M., 136 N.J. 546, 558 (1994) (reaffirming "important policy preference for the permanent placement of children");
In re Guardianship of J.C., 129 N.J. 1, 26 (1992) ("[C]hildren have an essential and overriding interest in stability and permanency...."). Beginning with the enactment of the Child Placement Review Act in 1978, N.J.S.A. 30:4C-50 to -83, and the passage of the federal Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 670 et seq. (AACWA), providing permanency for children when efforts to reunite families fail has been a major underpinning of the child welfare system. The AACWA identified permanency for children as the programmatic goal of the State once it intervenes in the family due to parental abuse or neglect of a child. With the passage of the federal Adoption and Safe Families Act in 1997, Congress reemphasized the importance of permanency by shortening the timeframe within which each child's permanency goal must be achieved. 42 U.S.C. § 675(5)(c). Those statutes provide the public policy framework within which the "best interests of the child" and the termination of parental rights standards of N.J.S.A. 30:4C-15.1a are applied. [P.P., supra, 180 N.J. at 510-11.]
Indeed, 42 U.S.C.A. § 675(5)(E) provides that a State shall file a petition to terminate the parental rights of the child's parents when a child has been in foster care for fifteen of the most recent twenty-two months. Given this policy, we find further delay, premised on the possibility that with further treatment L.C. will be able to parent, to be unwarranted. The girls' aunt and uncle seek to adopt. They should be permitted to do so.
In this case, it is unquestionable that DYFS made reasonable efforts to provide services to L.C. to assist her in assuming her parental responsibilities, including supervised visitation, psychological counseling, anger management classes, parenting classes, and psychological evaluations. D.M.H., supra, 161 N.J. at 390; see also K.H.O., supra, 161 N.J. at 354.
As a final matter, we conclude that terminating L.C.'s parental rights to her two daughters will not do more harm than good. As described by the examining psychologists, L.C. and her older daughter are bonded, but a closer bond exists between the daughter and her foster parents. Additionally, it was determined by Dr. Becker-Mattes that the bond between L.C. and her younger daughter is weaker, both because they had not lived together and because of the circumstances of the daughter's birth and her resemblance to her biological father. In contrast, the bond between the younger daughter and, particularly, her uncle was found to be strong. Nothing in the record suggests that the aunt and uncle have offered anything less than exemplary care to the two girls, to whom they are devoted. According to Dr. Becker-Mattes, to break that existing bond would cause the girls psychological harm. Only Dr. Mack found that the harm could be mitigated, however he conditioned that conclusion on L.C.'s continuation on the path of emotional stability and her receipt of the necessary treatments. He also conditioned his conclusion on the receipt by the girls of psychological counseling - counseling that he admitted would not be required if they remained with their uncle and aunt. Termination, we find, thus will not do more harm than good.