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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 19, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
R.K. AND T.H., DEFENDANTS-APPELLANTS, AND S.B., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF N.I.H., N.C.H., T.K.H., N.O.H., N.A.H, AND T.A.H., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-119-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 20, 2010

Before Judges Carchman, Parrillo and Lihotz.

In these consolidated appeals, defendant T.H. and defendant R.K. appeal from a March 30, 2009 order of the Family Part terminating parental rights, in the case of T.H., to N.C.H., N.I.H., T.K.H., N.O.H., N.A.H. and T.A.H. and in the case of R.K., to N.C.H. On this appeal, defendants assert that the Division of Youth and Family Services (DYFS or the Division) failed to establish by clear and convincing evidence the statutory criteria set forth in N.J.S.A. 30:4C-15a, and articulated by the Supreme Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986). We conclude that DYFS met its statutory burden by clear and convincing evidence and affirm.

These are the relevant facts adduced from the record.

T.H., born on March 26, 1979, and R.K., born on September 8, 1972, were not married but produced a son N.C.H., born on April 22, 1997. T.H. is the mother of eight other children, only six of whom (including N.C.H.) are the subject of this appeal.

DYFS was first referred to the family in March 1998, when N.C.H., then one, and his two-year-old sister, T.L.*fn1 were left alone. T.L. began knocking on nearby apartment doors, crying, in an attempt to locate her mother. Police were called and took the children to a local hospital.

T.H. admitted to DYFS that she left the children alone so that she could buy diapers, and returned two hours later; she did not immediately check the children, believing they were asleep. Although neglect was substantiated and the children temporarily removed, they were later returned to her custody.

During the ensuing years, twenty-one referrals were made to DYFS regarding this family. For example, in 2003, T.H. left her children and disappeared for a lengthy period of time, leaving the children with her mother, V.H. Although upon T.H.'s return the apartment was found clean and food available so no abuse charge was substantiated, the pattern of leaving her children continued. In 2004, T.H. left her then five children with a friend. No food was available and when T.H. returned, she explained that she was stressed and needed a break from her children.

A similar circumstance arose after a complaint that V.H.'s boyfriend had hit one of the children. It was then determined that T.H. had left the children two days earlier with no food or diapers and her whereabouts were unknown.

This recurrent pattern of activity as well as DYFS's recognition that T.H. suffered from significant psychological and cognitive deficits prompted DYFS to reconsider a plan of reunification and consider the alternative of termination and placement with a view towards adoption. Specifically, DYFS was concerned that T.H. was mentally, emotionally and psychologically unstable and unfit to parent. She tended to leave her children with others for substantial periods of time, frequently without food or money, so that she could attend to her own personal affairs. Moreover, she left the children with individuals who did not want to care for them, and without telling the caregivers how to contact her.

DYFS moved for and was granted custody of seven of the children in July and September 2005, and despite T.H.'s denial that she was again pregnant, she gave birth to twins in 2007, who were also removed and placed in foster care by DYFS.

During this period, DYFS offered numerous services to T.H. Specifically, she was offered visitations after the initial 1998 referral, as well as drug screens, counseling and psychological evaluations and parenting classes. T.H. completed a parenting class in 2006, but DYFS believed she needed to attend another program; T.H. refused to do so.

T.H. had been offered visitation with her children through Tri-City Peoples Corporation (Tri-City). However, she did not consistently visit with her children, and Tri-City ultimately terminated the visitations, in part because the children became so upset when their mother failed to appear as scheduled. DYFS also offered T.H. continuing parenting classes, and numerous additional psychological evaluations. Unfortunately, T.H. was frequently non-compliant with the recommendations made by the psychologists or therapists she saw, and at one point refused to attend therapy at the East Orange Hospital as requested by DYFS. DYFS referred T.H. to a "Community Health" program in 2007, but T.H. did not attend, believing that the program was for "retarded people." In fact, at one point, DYFS informed T.H. that by attending therapy, she might be able to improve to the point where the termination of her parental rights could be avoided. Nevertheless, T.H. failed to consistently attend therapy or comply with the recommendations.

All of the children have been placed. N.C.H. lives with his current caregivers, the Ds, his aunt and uncle, and has been there since June 2005. Two of his siblings reside there as well. N.I.H. was placed with V.H. in June 2005, while N.A.H. and T.K.H. lived with foster parents who were not identified in the record. Notably, the caregivers wanted to adopt the children despite certain behavioral and physical problems. One child participates in an educational program for children with behavioral problems while another attended special education classes at an elementary school and received counseling for behavioral issues. Two of the children had no educational issues and one child exceeded her school's expectations. Nevertheless, these children receive in-home therapy for various physical and speech issues. In sum, the children present discreet issues that must be addressed by their respective caregivers.

At the time of trial, T.H. sought reunification with her children. She indicated that she was employed full-time and maintained a one bedroom apartment in East Orange. She testified that she would become a better parent by virtue of attending parenting classes, and promised that she would not leave her children alone for extended periods anymore. T.H. claimed that she had engaged in that behavior previously because of her depression and monetary issues, and promised to begin attending therapy again in order to ensure that such behavior would not recur.

T.H. conceded that she had refused to participate in therapy in the past, and had been terminated from certain providers. She claimed that she had done so after being directed in September 2007 by a DYFS caseworker to tell her children her parental rights were being terminated, since such efforts on her part would no longer result in reunification.

T.H. asserted that she missed visits due to issues surrounding the current litigation, but denied being terminated from any visitation program. T.H. also saw her children in "unofficial visits" arranged through the children's caregivers.

If reunited with her children, T.H. planned to move to Georgia and "work on getting a job." She wanted to take her children to movies, skating and on trips, and wanted them enrolled in ballet, dancing and karate classes.

At trial, R.K. was incarcerated at Bayside State Prison. He had been incarcerated for approximately twenty-five months, and anticipated his release would occur within six months. He had only been out of prison seven months from a prior incarceration before beginning his present jail term.

N.C.H. had visited with R.K. while he was incarcerated in another prison, but could not do so while at Bayside. R.K. claimed that he and N.C.H. had spent time together while he was not in jail, including some overnight visits. Although he had not seen his son since July 2008, R.K. believed that he and N.C.H. had a good father and son relationship.

R.K. had a forklift operator license and believed he could obtain employment once released from prison. Once released, he planned on living with N.C.H. and his girlfriend, perhaps in Pennsylvania where his sister lived. He intended to support his family with the proceeds from a vaccination settlement which would provide him with $125,000. He also planned to open a small business once relocated.

R.K. admitted that he had been incarcerated ten times as an adult. He was fourteen when he was first arrested. He was in state prison three separate times, the last for CDS possession. He conceded that while incarcerated in 2005, he obtained his license to operate a forklift. Moreover, in 2006, between his last two incarcerations, R.K. had worked in a candy store.

Nevertheless, he felt compelled to sell drugs to support his family, leading to his current incarceration.

DYFS provided T.H. with numerous psychological and psychiatric evaluations, some of which were performed by professionals who did not testify at trial. T.H. underwent a psychiatric evaluation by Ambrose O. Mgbako, M.D., in October 2005. After discussing her history, Mgbako found that T.H. demonstrated "symptoms of depression of mild intensity related to her lack of involvement with her children." T.H.'s "intellectual functioning [was] borderline at best." Mgbako found that T.H. lacked the "capacity to appreciate the seriousness of her liabilities, her lack of resources to be utilized in raising her children, and [her] lack of meaningful future opportunities."

Andrew P. Brown, III, Ph.D., performed psychological evaluations of T.H. in June 2006 and February 2007. In the June evaluation, Brown noted that T.H. was living alone in an apartment in East Orange, supported by public subsidies and welfare. As of that time, T.H. had seven children with four different fathers. She reported a limited employment history and denied using drugs; however, she admitted to the occasional use of alcohol. She conceded that she left her children alone, leading DYFS to remove them from her care.

Testing revealed that T.H. demonstrated "poor concentration and mental flexibility," as well as "slow mental processing." She suffered from "impaired executive mental processing", suggesting that she would "have difficulty engaging in independent, effective problem solving." Moreover, she likely suffered from a "neurodevelopmental disorder."

Additional testing showed that T.H. had an IQ less than 70, indicating that she had a "[d]eficient . . . range of intellectual functioning." Her "verbal analogous reasoning" and "understanding and awareness of social mores" was in the "[b]orderline range." All of these findings were "consistent with the presence of a learning disability."

Brown concluded that T.H. demonstrated "impaired cognition, reasoning and problem solving abilities." She was deficient in areas such as "concentration, concept formation, verbal and non-verbal learning and memory," and had difficulty performing tasks that "require mental shifting or sequential-alternative processing." T.H.'s ability to perform "cognitive operations" was "impaired." It was likely that T.H. failed "to recognize the larger significance of decisions" she makes. In sum, Brown concluded that T.H. was "mentally incompetent with regard to her ability to execute adequate parental judgment." Her deficiencies rendered "the potential for child endangerment [as] excessive."

In his report following the February 2007 evaluation, Brown re-stated T.H.'s history. During the evaluation, T.H. stated that she was attending counseling and therapy sessions and was planning to begin a GED program; after she obtained her degree, T.H. planned to obtain employment. However, T.H. expressed her belief that the public assistance she was receiving would be "sufficient for her financially."

T.H. discussed her visits with her children, their various placements, and blamed DYFS for her separation from her children, claiming that although she had done all DYFS asked of her, DYFS simply did not "want [her] to have [her] kids."

Testing done at this evaluation revealed that T.H. attempted to give what she believed were the "desirable" responses "in order to hide her negative personal characteristics." However, Brown believed that T.H. excessively used "selected defense mechanisms, such as suppression, repression, denial, rationalization, and lack of insight into her behavior." Further, testing indicated that T.H. "requires sustained mental health intervention." T.H. also demonstrated "a rigid attitude toward the appearance and behavior of her children," leading her to "make her children fit a rigid mold as defined by her."

In sum, Brown concluded that T.H. failed "to recognize the larger significance of decisions that she either makes or does not make and as a consequence her capacity to make sound judgments and decisions [is] compromised." Brown diagnosed T.H. as suffering from "Depressive Disorder NOS", "Mild Mental Retardation", "Learning Disorder NOS", and "Cognitive Disorder NOS." T.H. did not "demonstrate that she was ready nor able to parent independent of supervision as her psychological status is not conducive to [the] fulfillment of parenting obligations and responsibilities. Furthermore, prognosis for parenting is poor."

In March 2007, Denise M. Williams-Johnson, Ph.D., performed a psychological evaluation of T.H. At the beginning of the evaluation, T.H. was very angry because her twins were not brought to a bonding evaluation as she anticipated. At one point, she stated that she 'could black out on everybody . . . (and) could get a gun and kill everyone involved with (her) case, and anyone else (she) wanted' if her Parental Rights [sic] are terminated, she does not get her children back, or DYFS attempts to take her newborn twins after their anticipated birth in April 2007.

T.H. also made similar threats "to harm herself" if any of those events occurred. By the end of the interview, T.H. had calmed down, and indicated that she did not intend to carry out her threats.

Although T.H.'s composure at the end of the evaluation precluded an emergent hospitalization, William-Johnson was sufficiently concerned that "an attempt to warn all individuals involved with the case appears warranted, for purposes of taking precautions when in contact with [T.H.]." The doctor felt compelled to issue a so-called Tarasoff letter,*fn2 warning anyone involved of the potential danger posed by T.H. when she was overly angry.

Based on this incident and her other evaluations, Williams-Johnson concluded that T.H.'s "frustration tolerance was low," and that if placed under sufficient stress she might deteriorate to the level demonstrated during the March 2007 evaluation. She recommended that T.H. receive a psychological evaluation, treatment, and monitoring with respect to possible medications, at East Orange Hospital. At trial, she conceded that she had not seen T.H. since March 2007, and could not offer a more current evaluation. She did note that once an individual puts an idea in his or her "repertoire" regarding injury to self or others, the individual must be monitored to ensure that no repetition of such threats occur.

T.H. was also referred to Johnson & Associates for psychological counseling. As of April 2007, she had not regularly appeared for the anger management or individual therapy classes offered, although when she did appear she participated "well." Although T.H. seemed to be making progress, she still had a "hard time accepting the consequences of her actions, which is keeping her from moving forward emotionally."

Finally, in May 2007, T.H. was psychiatrically evaluated by Sonia Oquendo, M.D. Although T.H. denied any history of psychiatric hospitalizations, it was "documented that she had at least two or three inpatient psychiatric treatments for unclear reasons."

During the evaluation, T.H.'s speech was clear, "affect was appropriate", and her "thought process was logical and she was goal-directed." T.H. was "alert and oriented to time, person and place." T.H.'s concentration "was fair at best", but her memory was good. T.H.'s intellectual function was described as being "mild mental retardation, or borderline at best."

To summarize, T.H. had a history of psychiatric inpatient hospitalizations, was "non-compliant" with various services offered to her, and demonstrated "below average intellectual functioning, poor concentration and distractibility. She has no insight into her problems. She has unrealistic expectations of having a big mansion including a swimming pool before she can assume the responsibility of reuniting with her children." Notably, T.H. expressed the desire to reunite only with her youngest children immediately; perhaps in the future she could reunite with her older children.

T.H.'s "limited intellectual functioning markedly interfered with her capacity to effectively parent her children." The mental retardation from which she suffers was not treatable, and T.H. did not demonstrate a commitment to participating in the services that could help her improve her parenting skills. There was also no "evidence of any significant improvement" in her parenting skills. Nevertheless, T.H. did "not meet diagnostic criteria of any major mood or psychotic disorder", and no medications were needed.

DYFS produced two expert witnesses to discuss T.H.'s and R.K.'s parenting abilities and the bonds between them and their children, as well as the bonds between the children and their current caregivers.

Frank Dyer, Ph.D., admitted as an expert in psychology, was offered to relate his findings resulting from a psychological evaluation of T.H. T.H. did not abuse alcohol or drugs, nor did she have a criminal record. However, she admitted that she had neglected and abandoned her children for periods in the past, although she promised during the evaluation that no such events would recur.

Dyer found that T.H. had mild cognitive limitations (i.e., she was mildly retarded), but no thought disorders. However, T.H. demonstrated "poor judgment, little insight into her situation, defective impulse control, and [a] low frustration tolerance." T.H. did not believe that she needed therapy and called referrals for therapy superfluous. Moreover, she had been terminated from other therapy programs, which was consistent with her belief that she did not require assistance.

In addition, T.H.'s thinking processes were bizarre and only loosely tied to reality. She had difficulty maintaining relationships with men, resulting in brief affairs during which several of her children were born to various men. Dyer was also concerned because more than two years after her children were taken, T.H. still lacked insight into her situation and problems.

In sum, T.H. lacked sufficient capacity to safely parent her children because she lacked the necessary intelligence, judgment, sense of responsibility, impulse control or the ability to put her childrens' needs ahead of her own. Because she was unable to create a "risk-free environment for them," Dyer believed T.H. should not be considered "a viable candidate for placement of any of her children."

Dyer also evaluated R.K. at the correctional facility where R.K. resided. R.K. had a tenth grade education. However, he had a lengthy criminal history including twenty arrests as a juvenile, and ten arrests as an adult; he was incarcerated three times in state prison, including the term he was serving during trial. He posed a "very high risk of criminal recidivism." He also suffered from a personality disorder NOS; that is, while he had no pure personality disorders, he demonstrated signs of "antisocial personality disorder and narcissistic disorder."

R.K. described his proposal to relocate with N.C.H. to Pennsylvania where he would live with relatives. However, he had no specific plans, nor any employment prospects.

Dyer concluded that R.K. was "preoccupied with his own needs" and "contemptuous of rules and laws." Dyer believed that R.K. was not a "viable candidate" to regain custody of his son. In fact, it would be "extremely destructive" to N.C.H. if he was reunited with his father.

Dyer also performed separate bonding evaluations of the children with their biological parents and their current caregivers. On April 11, 2008, he performed a bonding evaluation of N.I.H. with V.H., her maternal grandmother with whom she lived. V.H. noted that she allowed T.H. to visit with N.I.H. V.H. recognized that T.H. had a history of abandoning her children, but believed that T.H.'s other parenting skills were adequate. V.H. indicated her willingness to adopt N.I.H. if T.H.'s rights were terminated, and would ensure continued visitation between T.H. and her daughter.

Dyer noted that N.I.H. had emotional and learning problems. She was not reading at her grade school level, "was only able to write three words," frequently left her seat during class, and required "constant redirection." Further, testing indicated that N.I.H. suffered from "hyperactivity, aggression and conduct problems." N.I.H. took "longer to recover from difficult situations than do most other children of her age." N.I.H. also displayed "a mild degree of oppositional behavior."

During the bonding session, N.I.H. referred to V.H. as "Mama" or "grandma." N.I.H. had been living with V.H. since August 25, 2007, and liked it there. Although she enjoyed living with V.H., N.I.H. indicated that she would "love to live with [her] mom and [siblings]," because she "really" loved her mother.

Also on April 14, 2008, Dyer performed a bonding evaluation between T.K.H., N.C.H., and N.O.H., who all lived with the Ds. Dyer noted that N.C.H. was angry because T.H. had already left the office that day following her earlier psychological evaluation. Mrs. D. noted that N.C.H. was "good," but had "a lot of anger because he is separated from his parents." N.C.H. took medication for hyperactivity. As of the evaluation, N.C.H. was in both a regular fourth grade class and after school program; he was slated to begin in the "Challenge Program" a month after the evaluation was done. N.C.H. had been held back from advancement and suspended in the past due to his behavioral problems.

Mrs. D. explained that on one occasion in March 2008, around the time of T.H.'s birthday, N.C.H. threw several tantrums. After speaking with his mother on the phone, N.C.H. "threw another tantrum" and then retrieved a knife and threatened Mrs. D. He was taken to the crisis unit at a local hospital and stayed for eight days. T.H. visited her son only once.

The Ds indicated that they wanted to adopt N.C.H. since they had custody of him for so long and since Mrs. D. could "control him." Notably, N.C.H. became very angry when T.H. cancelled her scheduled visits.

N.O.H., then four years old, was a "good kid" who was "hyperactive." She was enrolled in a daycare program and suffered tantrums at school when she did not get "her own way." The Ds also wanted to adopt her.

Although T.K.H. loved to play, he also threw tantrums frequently. He cried frequently at his daycare program, but suffered from no medical problems. The Ds wanted to adopt him as well.

Dyer performed a bonding evaluation of N.I.H., N.O.H., T.K.H., N.C.H. and T.H. on April 14, 2008. N.I.H. indicated her preference for living with T.H., although living with the Ds was "good."

N.O.H. identified both T.H. and Mrs. D. as her "mommy" and noted that Mrs. D. loved her. She believed that living with the Ds was a "good thing, and that it would be a bad thing" if she left the Ds to live with T.H. However, she also claimed that her preference was to live with T.H.

Dyer also did a bonding evaluation of T.K.H., N.O.H. and T.H. The children and T.H. were affectionate towards each other, and the children called T.H. "mommy."

Finally, Dyer did a bonding evaluation of N.C.H. and R.K. on April 18, 2008, at the jail where R.K. was incarcerated.

R.K. did not interact with his son that much; rather, he offered "moralistic sounding" speeches to the caseworker present and to N.C.H. about the perils of living a criminal lifestyle and the need to avoid jail. R.K. also commented negatively about T.H.'s behavior, wondering if she was "pregnant again." N.C.H. indicated that he wanted to live with R.K. and T.H. In fact, he wanted to be reunited with his siblings as well. However, Dyer did not believe N.C.H. and R.K. had closely bonded and opined that N.C.H. was "extremely confused" and had a "fantasy" of living a normal life with T.H. and his siblings. Further, N.C.H. wanted a permanent home with stable parents who looked out for his needs.

Dyer reached a series of conclusions. He found that N.C.H. suffered from "significant intellectual deficit," was hyperactive and aggressive, and had difficulty adapting to new situations. N.C.H. tested at "the upper end of the mildly retarded range." While N.I.H. "clearly loves [T.H.] and would like to be reunited with her," she also had formed "a deep attachment" to V.H., and would accept living with her permanently. Dyer recommended that N.I.H. be adopted by V.H.

Dyer concluded that N.C.H. had been in a "continuous placement" with the Ds "for a substantial period of time." He displayed "behavioral and emotional problems." Despite those issues and the aforementioned attack on Mrs. D., the Ds were still committed to adopting N.C.H.

Dyer recognized N.C.H.'s preference to live with T.H., and noted that the child would suffer a "complex emotional reaction that included both positive and negative elements." That is, N.C.H.'s relationship with T.H. would be dependent upon the Ds, and any separation from T.H. would upset N.C.H., given his expectation of a reunification with her.

However, by living with the Ds, N.C.H. would enjoy a permanent home with mature, stable caretakers who were not only "very competent" caregivers, but were also committed to adopting him. N.C.H. would also benefit because "the prospect" of reunification with T.H. would no longer exist. Dyer recommended N.C.H. be adopted by the Ds.

Dyer also concluded T.K.H. and N.O.H. should be adopted by the Ds. Both had lived with the Ds for two and one half years, and both suffered from tantrums and mild developmental issues. However, the Ds were committed to adopting both. While both children had "positive emotional connections" to T.H., they were clearly attached to the Ds as well.

If the children were removed from the Ds, both would suffer "a severe loss that would have negative psychological consequences" for them. Moreover, T.H.'s limitations made her "unable to care" for the children. Dyer recommended their permanent adoption by the Ds.

Dyer also recommended that N.A.H. and T.A.H. be adopted by their caretakers, with whom they had lived since May 2007, two months after they were born. Both children had developed attachments to the foster parents. Given their youth, however, "it was not certain that they would suffer severe and enduring harm" if they were removed from their caregivers. They might not suffer any great trauma upon a separation from them.

However, T.H. was not able to safely parent them for the reasons discussed above. Dyer recommended that the children be adopted by their current foster parents.

Joel Federbush, M.D., M.S., admitted as an expert psychiatrist, performed a psychiatric evaluation of T.H. to determine if her parenting skills were sufficient to permit a reunification. During that evaluation, T.H. was alert, properly oriented, but irritable. She was mildly mentally retarded, with an IQ of 67. Further, her "insight and judgment were limited." In this respect, Federbush noted that contrary to existing records, T.H. denied any prior psychological hospital admissions. Federbush diagnosed T.H. as having a history of depression. She scored 65 out of 100 on an assessment that tested functionality; that is, she could perform daily activities of life but functioned at a low level, perhaps lacking the ability to hold a job permanently.

Federbush believed that T.H. was not ready for reunification with her children, because her limited cognitive ability decreased her ability to parent. T.H. expressed unrealistic plans to Federbush regarding her future housing, i.e., she told him that she believed she would ultimately own a mansion with a pool. T.H. maintained "unrealistic expectations" regarding her ability to earn money in the future as well. In sum, T.H. needed psychiatric services and parenting classes before she could be safely reunited with her children.

In addition, T.H. missed scheduled therapy sessions despite her need for them. Similarly, although T.H. was aware of the evaluation's purpose, Federbush believed she did not act in a way that would further that goal, particularly by claiming that she did not need DYFS's services. It would take a substantial period of therapy before T.H. could perhaps be entrusted with her children, although Federbush termed that possibility "probably unlikely." Federbush could not offer an opinion regarding R.K., because R.K. was unable to attend a scheduled evaluation.

In her bench opinion, Judge Hayden explicitly found the expert testimony described above credible and largely "uncontested." She concluded, based on the "overwhelming credible evidence" produced at trial, that DYFS had proven all four of the statutory prongs necessary for the termination of the parental rights of T.H. and R.K.

In her extensive and thorough written opinion, the judge found that although DYFS referred T.H. for psychological evaluations and therapy, she "eventually ceased attending" all of those programs. Moreover, T.H. demonstrated "difficulty controlling her immense anger and irritation." In this respect, the judge referred to the Tarasoff letter sent by Williams-Johnson in March 2007.

The judge described the results of the psychological and psychiatric evaluations performed on T.H. by those who did not testify such as Brown and Oquendo, and by the two experts who did testify, Dyer and Federbush.

The judge then addressed the facts as to R.K., noting his behavioral problems, lengthy arrest record, and three incarcerations in state prison. She noted that DYFS had arranged a visit between N.C.H. and R.K. in jail, and found that R.K. never called his son even though he had N.C.H.'s phone number. She also described R.K.'s plan to relocate with N.C.H. once he was released from prison, hoping to live on the award he expected in a tort case and to start a new business.

The judge also described Dyer's evaluation of R.K., in which Dyer found that R.K. was a "narcissistic grandiose individual with a pronounced antisocial dimension." R.K.'s psychological profile made it unlikely that R.K. could be entrusted with N.C.H.'s care, particularly given his high risk of recidivism.

Judge Hayden then addressed DYFS's plan for the six children, namely, the termination of T.H.'s and R.K.'s parental rights and the permanent adoption of the children by their current caregivers. She noted the living arrangements of the children, their behavioral status, and the children's desires regarding the future.

She found that T.H. and R.K. suggested to DYFS other family members as potential caregivers until they could reunite with their children, but "all were ruled out." Moreover, numerous services were offered to the children, as well as to T.H.

Analyzing the statutory factors, the judge found that DYFS had proven all of them by clear and convincing evidence and entered a judgment in favor of DYFS and terminated defendants' parental rights. This appeal followed.

On appeal, both defendants assert that DYFS failed to establish its statutory burden by clear and convincing evidence.

Our consideration of defendants' arguments require a brief analysis of the case law relevant to the issues before us.

The right of parents to enjoy a relationship with their children is of constitutional dimension. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982). The federal and state constitutions protect the inviolability of the family unit. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-59 (1972).

Government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S.Ct. 1526, 1540, 32 L.Ed. 2d 15, 30 (1972)). "The State as parens patriae may act to protect minor children from serious physical or emotional harm. . . . [T]his may require a partial or complete severance of the parent-child relationship." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986) (quoting In re Dep't of Pub. Welfare, 421 N.E. 2d 28, 36 (Mass. 1981)), superseded by statute on other grounds as stated in In re Adoption of Children by G.P.B., 161 N.J. 396 (1999). However, "[f]ew forms of state action are so severe and so irreversible." Santosky, supra, 455 U.S. at 759, 102 S.Ct. at 1398, 71 L.Ed. 2d at 610.

"When the child's biological parents resist the termination of their parental rights, the court's function will ordinarily be to decide if the parents can raise their children without causing them further harm." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of the court's inquiry is not whether the parent is fit, but whether he or she can become fit to assume the parental role within time to meet the child's needs. Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid.

The burden rests on the party seeking to terminate parental rights to demonstrate by "clear and convincing evidence" that severance of the parental ties is required. G.L., supra, 191 N.J. at 606; N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). The clear and convincing standard does not require absolute certainty, but can be met by evidence that gives the fact finder "a firm belief or conviction as to the truth of the allegations sought to be established." In re Guardianship of J.T., 269 N.J. Super. 172, 190 (App. Div. 1993) (quoting In re Boardwalk Regency Casino Licensing Application, 180 N.J. Super. 324, 339 (App. Div. 1981), modified on other grounds, 90 N.J. 361 (1982)).

The balance between fundamental rights and the State's parens patriae responsibility is achieved through the best-interests-of-the-child standard. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Under that standard, parental rights may be severed only if:

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

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

(3) [DYFS] has made reasonable efforts to provide services to help the parent correct the circumstances that led to the child's placement outside the home and the court has considered alternatives to the termination of parental rights; and

(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1a.]

These standards are not discrete nor separate. G.L., supra, 191 N.J. at 606; K.H.O., supra, 161 N.J. at 348. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children. Ibid. The considerations involved in determining parental fitness are quite fact sensitive and require particularized evidence that addresses the specific circumstances of the specific case. Ibid.

Our review of a trial judge's decision to terminate parental rights is limited. G.L., supra, 191 N.J. at 605; In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). In reviewing the factual findings and conclusions of the trial judge, we are required to accord deference to the trial judge's credibility determination and her "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. G.L., supra, 191 N.J. at 605; Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We will defer to the judge's findings if they are supported by adequate, competent, substantial and credible evidence. G.L., supra, 191 N.J. at 605; J.T., supra, 269 N.J. Super. at 188. As long as the trial judge's finding of facts and conclusions of law are well-grounded in the record and the law, they should not be disturbed. J.N.H., supra, 172 N.J. at 472; In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).

Defendants claim that the judge erred in concluding that DYFS demonstrated through clear and convincing evidence that the first statutory prong had been met: that the childrens' safety, health and development were or will be endangered by the parental relationship.

The first prong of the statutory test "requires a clear and convincing showing that the child's safety, health and development have been or will continue to be endangered by the parental relationship. The primary focus is the issue as to whether the parent has harmed the child or may harm the child in the foreseeable future." C.S., supra, 367 N.J. Super. at 113. The harm shown must either threaten the child's health or have likely continuing deleterious effects on the child. K.H.O., supra, 161 N.J. at 348. Emotional or psychological harm to a child resulting from a parent's inaction can constitute injury sufficient to terminate parental rights under this prong. In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). Further, a court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect."

D.M.H., supra, 161 N.J. at 383. In fact, the delay in establishing a stable and permanent home can create the harm that parental termination seeks to avoid. Ibid.

Judge Hayden found that DYFS met this prong with respect to T.H. through clear and convincing evidence. Specifically, T.H. represented a risk to her children "because she is currently unable to parent due to her psychological and cognitive deficits." T.H. "freely admitted" to leaving her children alone for long periods of time without food or money, "trusting that neighbors or family would care for them." Although T.H. never physically harmed her children, she nevertheless created a risk of harm to them. This was particularly true given the special needs some of the children had, needs that T.H. did "not even recognize."

The court found Dyer's expert testimony regarding T.H.'s cognitive and psychological deficits "persuasive," and noted that there was no reason to believe those deficits would improve. In Dyer's opinion, which the court credited, T.H. lacked "the necessary judgment, sense of responsibility, impulse control or capacity to place her childrens' needs before her own," thereby further endangering the children's safety.

Judge Hayden also relied on Federbush's expert testimony, in which he noted T.H.'s cognitive limitations and "unrealistic expectations [which] also interfered with [her] ability to parent." Federbush believed that T.H. would never "be safely able to parent."

Judge Hayden also found that DYFS met the first prong with respect to R.K. The court noted that R.K. had "been incarcerated more than half of his life." Even when out of jail, R.K. "did not present himself to [DYFS] as a placement for his son." R.K.'s absence from N.C.H.'s life due to his incarceration harmed N.C.H.

Further, N.C.H. had never lived with R.K., and R.K. admitted to Dyer that he sold drugs in order to support his family even though he was a forklift operator. In short, R.K. "failed to provide a safe home to [N.C.H.] during the time when his son needed one."

We do not believe the court erred. As to T.H., the court correctly relied on the uncontroverted expert testimony of Dyer and Federbush in finding that she abandoned her children for lengthy periods of time, sometimes without providing them with food or money. She also suffered from psychological and cognitive deficits that would likely never improve to the point that she could safely care for her children. Moreover, T.H. had frequently refused to cooperate with therapy, did not believe she had serious issues that affected her parenting skills, and did not believe that therapy was required so that she could become an effective parent.

While T.H. never physically assaulted her children, her behavior clearly affected them, some of whom had special needs. Further, a court need not wait for irreparable harm resulting from parental inattention or neglect. In short, we agree with the court that DYFS met this prong with clear and convincing evidence.

T.H. claims that even though her children were briefly removed in the past because she had been neglectful, DYFS had eventually returned her children to her; moreover, several DYFS referrals were ultimately unsubstantiated. She further claims that the court erred because her deficits did not form the basis for the original removal, she suffered from no formal thought disorders, and her mild mental retardation did not preclude her from being an effective parent. We disagree.

Although T.H.'s children were returned to her following the removals in the early years of this matter as noted above, the fact remains that once DYFS had the opportunity to evaluate T.H.'s psychological status, it became clear that she lacked the mental or emotional resources to effectively parent her children. Moreover, as previously discussed, a court need not wait for actual harm before concluding that this prong has been met. Given that T.H. admittedly left her children alone for lengthy periods of time, and given her cognitive and emotional limitations, T.H.'s argument in this respect should be rejected.

Further, although her cognitive deficits did not form the basis for the childrens' initial removal, it is clear that T.H. is not equipped at this point to adequately parent her children. As both of DYFS's experts opined without contradiction, T.H.'s emotional and cognitive shortcomings precluded her from safely parenting her children at this point, or in the near future. Meanwhile, the children needed permanent, stable and loving homes as soon as possible so that they could begin to live normal lives. Further, there is no requirement that the original basis for removal must be the basis upon which the court ultimately relies in terminating the parent's rights.

In addition, although T.H. did not suffer from a formal thought disorder, the court found credible the uncontroverted expert testimony of Dyer and Federbush, who both testified about T.H.'s deficits and the resultant harm her children would suffer if reunited with her.

Finally, it was not only T.H.'s mild retardation that led DYFS to seek the termination of her parental rights. Rather, it was her behavior in leaving her children unattended that initially led DYFS to remove them. Thereafter, following the numerous psychological and psychiatric evaluations she underwent, it became clear that T.H. simply could not adequately and safely parent her children. Her grandiose plans of living in a large home with a swimming pool attest to the danger her children would be placed in if they were reunited with her.

In short, the court did not err in finding that DYFS met the prong with respect to T.H.

Similarly, the court properly found that DYFS met this prong as to R.K. He had been incarcerated for most of his adult life, and for virtually all of his son's life. He admitted that when he was living with N.C.H., he sold drugs to support them. He demonstrated no parenting skills. His plan of reuniting with N.C.H. after his release from jail and relocating to Pennsylvania seem likely to end poorly, as R.K. could not provide any details as to his housing or employment plans. In short, we do not believe the court erred in finding that N.C.H.'s health and safety was, and would continue to be endangered by living with R.K.

In addition, Dyer testified that his psychological evaluation of R.K. had led him to believe that R.K. could not safely parent N.C.H., for the reasons noted above.

R.K. contends that his incarceration, by itself, was insufficient to support this court's conclusion regarding this prong. However, it was not only his incarceration, but also Dyer's uncontroverted expert testimony, and R.K.'s admitted selling of drugs to support his family while living with them, that supported this prong.

Further, R.K.'s argument that he offered potential caregivers to DYFS to care for N.C.H. until he was released, and proposed a plan for relocating to Pennsylvania to raise his son there, should be rejected. The relatives he offered as caregivers, such as the mother of his other son, were found unacceptable by DYFS, and his relocation plans were extremely vague; he offered no specifics regarding where he would live or how he would financially support himself and N.C.H., other than to refer to a settlement in a vaccine case regarding one of his children.

Moreover, while R.K. may not have "demonstrated a settled purpose to relinquish all parental claim" to N.C.H., the fact remains that DYFS provided clear and convincing evidence, as discussed above, to support the court's finding regarding this prong.

Finally, R.K.'s claim that the court did not rely on official judgments of conviction is also without merit since R.K. admitted during trial and at psychological evaluations that he sold drugs to support his family, leading to his incarceration during the litigation. Moreover, he admitted to ten arrests as an adult, the first of which occurred when he was fourteen. He had been in state prison three times. Thus, the court relied on R.K.'s own testimony, and not "hearsay or unsworn statements," as R.K. claims.

In sum, we conclude and the trial court properly found that DYFS met prong one by clear and convincing evidence with respect to both parents.

Defendants claim that DYFS failed to demonstrate that they were unwilling or unable to eliminate the harm to the children. We disagree.

The second prong of the statutory test requires DYFS to prove that the parents were unwilling or unable to eliminate the harm facing the children, including the harm that separation from foster parents may cause. The first two prongs of the statutory test are related, and evidence supporting one prong may support the other. D.M.H., supra, 161 N.J. at 379. This second prong "relates to parental unfitness." K.H.O., supra, 161 N.J. at 352. Parental unfitness can be demonstrated by showing that the parents are unable to eliminate the harm that endangered the children, that the parents failed to provide a safe home for the children, or that a delay in permanent placement would harm the children. Ibid.; N.J.S.A. 30:4C-15.1a(2).

Further, prolonged inattention to a child's needs, leading to a stronger bond with the foster parents, which if severed could harm the child, can also meet the requirement of this prong. Ibid. In short, parents should not "place their children in substantial jeopardy to [their] physical or mental health." A.W., supra, 103 N.J. at 607.

In concluding that DYFS met this prong with respect to T.H., Judge Hayden noted that although T.H.'s children had "been out of [her] care since 2005 or in the twins case since birth in March 2007," T.H. had consistently and repeatedly failed to participate in services ordered by the court. T.H.'s claim at trial that "she was now ready to participate in services was not credible given her four year history of non-compliance."

The judge further found that "even [T.H.'s] perfect compliance might not have yielded a different result[,]" since the uncontroverted expert testimony indicated that T.H.'s cognitive and psychological deficits "cannot be significantly changed by classes or therapy." These were the problems that led T.H. to engage in the behavior that resulted in the removal of her children.

T.H. could not "overcome the conditions that make her unable to parent her children." Since the children needed "permanency, consistency and stability in their lives . . . [they] cannot wait" for the unlikely possibility that T.H. could improve to the point where reunification was possible.

Similarly, R.K. had "significant mental health issues, instability and antisocial behavior that interfered with his ability to parent [N.C.H.]" Dyer's uncontroverted expert testimony, which the judge found credible, indicated that R.K. "was a narcissistic and grandiose individual with a pronounced antisocial dimension." Further, R.K. lacked "the necessary impulse control, emotional stability or capacity for putting the needs of a child above his own." Notably, R.K. "did not show any insight into [his] deficiencies . . . in order get help to be able to offer a safe and stable home to [N.C.H.]"

R.K.'s "vague plan" of relocating with N.C.H. to Pennsylvania and starting a business with an award in a legal proceeding was not likely to succeed given that "he does not have a history of stability or employment other than being involved in criminal enterprises."

The judge concluded that N.C.H. could not "be safely entrusted to [R.K.]," particularly given the child's "severe behavioral problems." Moreover, it was "impossible" to determine when, or if, R.K. would be able to safely parent the child.

The judge recognized "that children need permanency and often cannot wait for their parents to change their lives." Even in cases where the parents have begun to take the steps needed to regain the ability to safely parent their children, removal was affirmed because the child needed immediate placement in a safe and secure home, and the parents were unable as of trial to provide one. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512 (2004).

In sum, the children had been without their biological parents for several years and they had the opportunity to be permanently adopted by loving caregivers who could offer them the stability and safety they needed. The children simply could not "wait for some uncertain time" for T.H., or for R.K. in the case of N.C.H., to improve to the point where they could safely care for the children. This was particularly true given the emotional harm the children had already suffered. DYFS had "proven the second prong by clear and convincing evidence."

As to the trial court's finding regarding T.H., the experts agreed that the children needed a prompt resolution to the matter so that they could be placed in the appropriate setting as quickly as possible. The experts also noted that the children, except arguably N.C.H. and N.I.H., had bonded more closely with their caregivers than with T.H.

When T.H. did have custody of her children, she frequently left them alone, or with relatives, frequently for long periods without food or money, and without telling the children or relatives her whereabouts.

In addition, T.H. suffered from cognitive and emotional problems that the experts agreed probably could not be resolved even with T.H.'s "perfect compliance" with the services DYFS offered. In fact, T.H. seemed unaware of her problems, did not believe therapy or other interventions were needed to improve her ability to parent (resulting in her termination from several therapeutic programs), and had grandiose plans for the future that were clearly unrealistic. T.H. could not have improved to the point where she could have safely and properly cared for her children. Her children were and are entitled to permanent and stable living situations if they were to flourish.

T.H. claims that she did not use drugs or alcohol and had no significant criminal history. Further, she argues her mental status was not the reason her children were initially removed; rather, they were removed because she had neglected them. However, once the children were removed and DYFS experts had an opportunity to evaluate T.H., her mental deficiencies became clear; those deficiencies led to her failure to properly care for her children, and they were unlikely to improve enough, even with T.H.'s full compliance with the services offered to her, to allow her to safely parent her children. The initial reason for the removal was irrelevant; rather, what is important is that T.H. was and remains unable to eliminate the harm she would present to her children in the event of reunification.

T.H. also claims that at trial she testified she is now willing to consent to participating in the therapy needed for a safe reunification. However, the judge found T.H.'s claim in that respect was not credible "given her four year history of non-compliance." The judge's finding in that respect is beyond reproach, given her ability to view T.H. while she testified. G.L., supra, 191 N.J. at 605.

T.H.'s claim that the court relied too heavily on the testimony of Williams-Johnson regarding the March 2007 Tarasoff letter is meritless; the judge did not rely on that letter but merely alluded to its presence. She was entitled to consider it in her overall assessment of all relevant facts.

We find no merit in T.H.'s claim that because she did not take medication for her psychological deficits, the court erred in terminating her rights. T.H.'s deficits are a reality notwithstanding the availability of medication.

Addressing the trial court's findings regarding R.K., we discern no error. R.K. demonstrated anti-social behavior that led to his incarceration for virtually all of N.C.H.'s life. His plan to care for N.C.H. following his release from prison was properly rejected by the judge as too vague; even when R.K. had money, he never demonstrated the ability to stay out of jail. Further, R.K. demonstrated no insight into his problems, and he was unlikely to improve as a parent to the point where he could properly care for N.C.H. This is particularly true given N.C.H.'s severe emotional problems, which R.K. (and T.H. as well) was simply unequipped to handle.

R.K. claims that the judge erred because there was no evidence "of the nature of the crimes" he committed that led to his incarcerations. However, R.K. admitted to numerous arrests and incarcerations, including selling drugs in order to support his family, even though he had occupational skills as a forklift operator.

While R.K. is correct that he did not physically harm N.C.H., the fact remains that he was incarcerated for virtually all of his son's life. Moreover, he lacked the parenting skills needed to deal with his son's severe emotional problems.

While Dyer's examination of R.K. was relatively brief, there was more than sufficient evidence to support the court's conclusion regarding this prong.

Defendants assert that the judge erred both in concluding that DYFS met the third statutory prong, and in determining that a Kinship Legal Guardianship was not a feasible alternative to the termination of their parental rights.

N.J.S.A. 30:4C-15.1a(3) requires that DYFS make "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[.]" "Reasonable efforts" are defined at N.J.S.A. 30:4C-15.1c as [a]ttempts by an agency authorized by [DYFS] to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.

The reasonableness of DYFS's efforts are not measured by their success, but rather "against the standard of adequacy in light of all the circumstances of a given case." D.M.H., supra, 161 N.J. at 393. The goal of such efforts is to encourage and maintain the parent-child relationship as a basis for reunification. Id. at 390. One factor suggesting that such efforts are no longer reasonable is that parents refuse or fail to engage in all the services offered. A.W., supra, 103 N.J. at 610. An evaluation of the reasonableness of DYFS's efforts must be done on an individualized case by case basis. D.M.H., supra, 161 N.J. at 390.

In her written opinion, the judge found that DYFS met the third prong by clear and convincing evidence. Specifically, Judge Hayden determined that DYFS "provided numerous services and referrals for service" to T.H., including "visitation, counseling, parenting skills, anger management and psychological, neuropsychological and psychiatric evaluations." Although T.H. participated at times with those services, "more often she was noncompliant."

DYFS was able to offer only limited services to R.K. since he "was incarcerated during most of this litigation and [was] thus unavailable for most services." DYFS did provide R.K. with a DNA test (to prove his paternity), visitations with N.C.H. in jail, and an assessment of proposed living arrangements for N.C.H. that R.K. provided.

DYFS also offered services to the children to help stabilize them in their various placements, and "made extensive efforts to locate [their] missing fathers by conducting exhaustive searches and arranging DNA testing [for potential fathers]."

The judge concluded that individuals with mental conditions such as T.H.'s are often "unable or unwilling to participate in, or profit from, the very programs assigned to help them." Therefore, DYFS's efforts could not be "measured by their success."

Judge Hayden then considered alternatives for the termination of T.H.'s and R.K.'s parental rights. She found that the four oldest children were placed with relatives who had demonstrated their commitment to adopting the children and giving them permanent and stable homes. The twins, T.A.H. and N.A.H., had "been in a loving foster home since their birth where the foster parents are willing to adopt."

Moreover, DYFS ruled out other family members as possible permanent caregivers for the children. Given that the six "children can be adopted in the homes where they are now, no viable alternative is apparent to the court that will provide the six . . . children with the permanency and stability they both need and deserve."

The judge's conclusions in this respect are unassailable. Her factual findings regarding T.H. are amply supported by the testimony and documentary evidence adduced at trial. That is, T.H. was offered a number of services, including parenting classes, psychological and psychiatric treatment and evaluations, and visitations. However, she did not comply with or complete all of them, particularly with respect to visitations (which she frequently missed) and counseling (in which she frequently did not participate, or which she believed was of no use to her). In fact, T.H. had been terminated from at least one therapeutic program offered by DYFS. It was not DYFS's failure to offer services that would assist T.H. in reuniting with her children, but rather T.H.'s refusal to fully cooperate, that led in part to the termination of her parental rights. Notably, those efforts focused on maintaining the parent child relationship and helping T.H. improve so that reunification might someday become possible.

T.H. argues that she was never offered services specifically "tailored to developmentally delayed or impaired parents." However, the record does not support T.H.'s implications that the providers to which DYFS referred her, such as Dyer, Johnson and Associates, or the other therapists, were unable to cope with her situation, or offered only "cookie-cutter, one-size fits all approaches."

T.H. also asserts that only two months after the guardianship litigation began in September 2007, DYFS told her essentially that reunification was not a realistic likelihood; as a result, she was noncompliant with services offered her since compliance would be "fruitless because she still would not be reunited with her children."

As we have noted, T.H.'s involvement with DYFS began in 1998 when DYFS first investigated a report that she left her children alone and unattended. T.H. had been offered services, including psychological counseling and evaluations, beginning at that time, many of which she did not cooperate with.

We reject without further discussion the suggestion that DYFS prejudged this case. The decisions as to T.H. were made after extensive involvement with her and her family. We deem such argument to be without merit.

Most importantly, T.H.'s oldest children's lives had been disrupted since their births, and her youngest children had never known a stable, loving family home with her. The children are entitled to live in stable, loving environments where their substantial needs can be properly met.

DYFS also adequately demonstrated satisfaction of the third prong with respect to R.K. As the judge correctly noted, R.K. was generally incarcerated after DYFS took custody of N.C.H., and he was therefore unavailable for services. R.K.'s incarceration created an obstacle to his potential for rehabilitation, N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006), and providing services to him was impractical. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div.), certif. denied, 192 N.J. 68 (2007). Nevertheless, DYFS did perform a paternity test to confirm that he was N.C.H.'s father, arranged for a visitation between R.K. and N.C.H., and offered psychological and bonding evaluations. He received those services DYFS could offer for him while he was incarcerated, and the court's conclusion in that respect should not be disturbed.

Finally, both T.H. and R.K. argue that the judge should have considered Kinship Legal Guardianship as an alternative to the termination of their parental rights.

In N.J.S.A. 3B:12A-1b, the Legislature recognized that an increasing number of relatives were caring for children who could not live with their parents given their parents' inability to properly raise the children. Those relatives were providing care on a long-term basis "because the caregivers either are unable or unwilling to seek termination of the legal relationships between the birth parent and the child[.]" Ibid.

The Legislature authorized such a caregiver to petition the court to seek appointment as the child's "Kinship Legal Guardian (KLG)." N.J.S.A. 3B:12A-5. Once so appointed, that caregiver "shall have the same rights, responsibility and authority relating to the child as a birth parent." N.J.S.A. 3B:12A-4a(1). The birth parent retains the right to visitation among other rights. N.J.S.A. 3B:12A-4a(4). However, such an arrangement should be considered only "when adoption is neither foreseeable nor likely." N.J. Div. of Youth & Family Servs. v. D.H., 398 N.J. Super. 333, 340 (App. Div. 2008). Thus, "[i]f adoption is readily available . . . KLG cannot be used to defend against termination of parental rights." Id. at 341.

Judge Hayden found that the children were placed with caregivers who demonstrated their commitment to adopting the children and giving them a permanent home. Meanwhile, no viable alternatives existed for any of the children.

The judge did not err by refusing to consider a KLG. The uncontroverted evidence at trial indicated that adoption was not only foreseeable, but in the children's best interest. Under such circumstances, the judge properly refused to consider such an arrangement.

Defendants argue that the court erred in concluding that DYFS demonstrated that termination of their parental rights would do more harm than good. The fourth prong of the statutory test requires that DYFS prove through clear and convincing evidence that parental termination will not do more harm than good. N.J.S.A. 30:4C-15.1a(4). The judge must decide whether a child would suffer greater harm from a termination of his or her parents' rights or from the permanent termination of his or her relationship with foster parents. K.H.O., supra, 161 N.J. at 355. Generally, if a child's bond with the foster parents is greater than his or her bond with his or her natural parents, then the fourth prong is considered met. Id. at 363.

The "central factor" to be considered under this prong is the child's need for permanency and stability. Id. at 357. Hence, permanence with a nurturing adult is important. A.W., supra, 103 N.J. at 610. A child cannot be held prisoner to the rights of others, even those of his or her natural parents.

C.S., supra, 367 N.J. Super. at 112. However, it has been suggested that an unsuccessful parent-child relationship should not be extinguished without the existence of a more promising relationship in the child's future. A.W., supra, 103 N.J. at 609-11.

In sum, when parents have exposed the child to harm which they have been unable to remediate, and when the child has bonded with foster parents who provide a nurturing home, then a termination of parental rights will likely not do more harm than good. K.H.O., supra, 161 N.J. at 360-61; J.C., supra, 129 N.J. at 18. In such a case, the "good" is the permanent placement of the child with a loving family, if reunification is impossible. Id. at 19.

In N.J.S.A. 9:6B-2a, the Legislature found that a child placed outside his or her home has special rights apart from those of his or her parents. Our courts have held that the law seeks to further a child's need for a permanent home even if not with the biological parents. Hence, permanency, and not reunification, is paramount. N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 558-559 (1994); In The Matter of Adoption of Child by P.S. and T.S., 315 N.J. Super. 91, 116 (App. Div. 1998).

Here, the judge found that DYFS met this prong with respect to T.H. She commenced her analysis by finding in general that T.H. was "unable to parent any child, let alone six children, most with special needs."

As to the twins, N.A.H. and T.A.H., the judge found that they never lived with T.H. and were bonded with their current caregivers, with whom they had lived since birth.*fn3 The "twins would suffer little harm from the severing of ties with [T.H.]." The twins's need for a permanent home with nurturing caregivers can be met if T.H.'s rights are terminated and the twins adopted by their current caregivers. Under the circumstances, it was "clear" to Judge Hayden that the termination of T.H.'s rights to the twins would not do more harm than good.

Similarly, although T.K.H. and N.O.H. are emotionally bonded to T.H., they viewed their current caregivers, the Ds, "as their psychological parents." After balancing the "little harm" caused by the termination of T.H.'s rights to them against the benefit of a "permanent adoptive home," the court concluded that the termination of T.H.'s parental rights to T.K.H. and N.O.H. would not do more harm than good.

N.I.H. had expressed a desire to live with T.H., with her current caregiver, V.H., and with her siblings. However, T.H. was never able to, and remained incapable of, caring for N.I.H., particularly given her special needs. V.H. had "successfully cared for N.I.H. for several years, and was committed to adopting her and ensuring her well being."

Dyer's expert opinion was that N.I.H. had a deep attachment to V.H., "had benefited greatly from living with her and would be able to have continued contact with [T.H.] and her siblings placed with the [Ds] if she stayed with [V.H.]" Further, Dyer did not believe N.I.H. would suffer any harm if T.H.'s rights were terminated, and believed that N.I.H. would benefit from the stability that a permanent adoption by V.H. would offer. DYFS had met this prong with respect to N.I.H.

Finally, N.C.H. consistently stated that his preference was to live with T.H., and he was "most disappointed" when she missed scheduled visits. However, he appeared "unable to understand" that T.H. lacked the ability to parent him. N.C.H. also acknowledged that he had no complaints about living with the Ds.

Dyer's uncontroverted expert opinion was that N.C.H. would suffer a "complex emotional reaction with both positive and negative elements" if T.H.'s rights to him were terminated. While N.C.H. "would feel upset" if T.H.'s rights were terminated and his expectation of reunification ended, the Ds had demonstrated "mature and sincere concern" for N.C.H.'s well being since his placement with them, and any harm caused by termination of T.H.'s rights "would be mitigated" by the benefit derived by living with them. Moreover, the Ds were best equipped to deal with N.C.H.'s severe emotional problems.

The judge recognized that N.C.H.'s desires had to "be considered." However, she concluded that those desires could not be "controlling, especially if [N.C.H.]'s wish to return to his mother would put him at continued risk of harm due to her mental health deficits."

The judge then considered the fourth prong with respect to R.K. She found that N.C.H.'s wish to be with his father also could not be fulfilled, because R.K.'s "psychological profile makes him unable to care for [N.C.H.], especially considering [N.C.H.]'s severe behavioral problems." Moreover, Dyer found no deep attachment between N.C.H. and R.K. "that would be harmed by a termination."

In sum, N.C.H. would suffer little harm if R.K.'s rights were terminated. The harm N.C.H. would suffer from a termination of his mother's rights would be mitigated by the permanent, secure, loving home the Ds would offer him. The judge found that DYFS met this prong with respect to both T.H. and R.K.

The uncontroverted testimony indicated that the children all required a final resolution of this litigation so that they could experience a permanent, stable and loving home environment. Moreover, the experts opined without contradiction that all of the children except N.I.H. and N.C.H. had become more closely bonded to their current caregivers than to T.H., with whom they had not lived for several years as of trial.

T.H. exposed her children to harm, remained unable to mitigate that harm, and four of the children had bonded more closely with their current caregivers.

This issue is closer as to N.I.H. and N.C.H. As of trial, N.I.H. still wanted to live with T.H. and her siblings. However, N.I.H. was also deeply attached to V.H., her caregiver, and Dyer testified without contradiction that the child had benefited from V.H.'s love and the stable home environment she had maintained for her granddaughter. Further, V.H. would be able to mitigate any emotional harm that N.I.H. might experience if T.H.'s rights were terminated, and would ensure continued contact through visitation with T.H. In addition, T.H. was unable to care for her daughter as of trial, and would not likely ever be able to care for her. Dyer's expert opinion was that N.I.H. would not suffer harm from the termination of her mother's rights, and would benefit from a permanent adoption by V.H. The judge accepted that opinion and we find no basis for disturbing that ruling.

As the experts noted and the judge found, N.C.H. consistently expressed his preference to live with T.H. rather than his current caregiver. However, T.H. has missed numerous scheduled visitations with her son, leaving him disappointed and disruptive as a result. Moreover, N.C.H. was unable to comprehend the emotional and cognitive limitations from which his mother suffered, and therefore did not understand that she was simply unable to adequately parent him, particularly given his severe emotional problems.

Further, N.C.H.'s current caregivers would be able to help mitigate the emotional harm that would inevitably result from the termination of T.H.'s parental rights, and were best equipped to handle his emotional problems on a long-term basis.

Notably, N.J.S.A. 9:3-49 requires that if a child sought to be adopted is of the age of 10 years or over, the appearance of the child shall be required at the final adoption hearing, unless waived by the court for good cause shown, and the child's wishes concerning the adoption shall be solicited by the court and given consideration if the child is of sufficient capacity to form an intelligent preference regarding the adoption.

T.H. argues that because N.C.H. would not consent to an adoption, the termination of her rights would be "problematic" since his "consent is required in order for an adoption to occur."

However, any consent is deferred until the final adoption hearing, by which time N.C.H. would hopefully have become even closer to the Ds. He would also have had an opportunity to realize that T.H. cannot care for him. Further, the statute above requires only that a court "consider" N.C.H.'s wishes. It is not clear, given his emotional problems and the complex situation confronting his mother, that N.C.H. would have sufficient capacity to form an intelligent decision in this matter. The experts recognized this issue as well, but concluded that N.C.H. would come to understand both that living with his mother was not feasible or desirable, and that his current caregiver offered him the best chance for future success by offering him a permanent, stable home environment now.

Again, we will not disturb the judge's findings in regard to N.C.H.

We reach the same result as to R.K. Again, N.C.H. indicated a preference for living with his father. However, Dyer found that no deep emotional bond had formed between R.K. and his son, largely because R.K. had been incarcerated for most of his son's life. Further, R.K.'s incarceration was the result of selling drugs to support his family even though he was trained as a forklift operator. Dyer's uncontroverted expert opinion was that R.K.'s psychological profile made it unlikely he could properly care for N.C.H., particularly given the child's emotional issues. As the judge found, there was no reason to believe that R.K. could or would actually raise N.C.H. in a stable, loving home in Pennsylvania, as R.K. envisioned, despite the funds he may receive in a vaccine settlement.

We conclude that the judge correctly found that DYFS met all four prongs of the relevant statutory test by clear and convincing evidence and accordingly, we affirm the judgment.

Affirmed.


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