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New Jersey Division of Youth and Family Services v. M.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 23, 2010

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

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-141-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 12, 2010

Before Judges Cuff and C.L. Miniman.

Defendant M.H. (father) appeals from the termination of his parental rights to M.H., Jr. (fictitiously Mario). Defendants M.F. (mother) and A.C., who was named as the father on Mario's birth certificate, have not appealed the termination of their parental rights to Mario.*fn1 Because plaintiff New Jersey Division of Youth and Family Services (the Division) proved all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, we affirm.

I.

In October 2007, the mother gave birth to Mario, who was born prematurely at thirty-three weeks and weighed just four pounds, nine ounces. In the year preceding his birth, the mother stated she had participated in a substance-abuse program at Kaleidoscope Health Care where she was prescribed methadone to treat her heroin addiction. The mother had used methadone during her pregnancy, tested positive for cocaine the day before she gave birth, and admitted to using heroin on the day Mario was born. The father was absent from the hospital.

The day after Mario's birth, the Division received a report from a staff member at St. Joseph's Hospital in Paterson. The reporter informed the Division that Mario had been born the previous day at Palisades Medical Center in North Bergen and had been transferred to the Neo-Natal Intensive Care Unit (NICU) at St. Joseph's Hospital. The reporter informed the Division that Mario tested positive for opiates and that the mother admitted to snorting heroin shortly before she gave birth.

That same day, a Division caseworker met with the mother, who was married to A.C. She identified Mario's father to the caseworker, but said that he was no longer her boyfriend. She stated that she and the father were having "a lot of problems" at the time she found out she was pregnant, but she remained hopeful that the father would be involved in Mario's life. She provided the Division with contact information for the father. The Division effected an immediate Dodd*fn2 removal.

Mario remained at St. Joseph's Hospital for several weeks. Initially, the medical staff treated Mario for neonatal absti- nence syndrome, addressed a sepsis problem with antibiotics for the first seven days, and monitored his grade one intracranial hemorrhage with ultrasound. On October 8, 2007, the medical staff transferred him from the NICU to the Intermediate Nursery. By October 10, the Division determined that Mario would require special medical attention upon release from the hospital because of his medically fragile status and undertook efforts to secure a Special Home Service Provider (SHSP) foster placement. The Division caseworker advised the mother of this on October 11.

At the mother's request, the Division asked the maternal grandmother on October 18, 2007, if she would be willing to assume custody of Mario upon his discharge from the hospital. She declined, explaining that her medical conditions would make it "difficult for her to care for the baby." She stated that her arthritis caused her arms to swell and she frequently had migraine headaches. However, she would be willing to assume custody of her three older grandchildren if the Division needed to place them. The Division determined at this time that the maternal grandmother had no history with the Division and no criminal record.

The following day, a family team meeting was held at the Division's office attended by the mother and the maternal grandmother. The mother had advised the father of this meeting, but he did not attend, even though "he stated that he [would] come." The caseworker had also called the father before the meeting began and left a "detailed message informing him about the meeting." The mother stated that the father introduced her to heroin and used drugs with her. She further stated that the father's criminal history included arrests for drugs and an assault and that he was on probation at that time. The Division asked the mother and maternal grandmother if any family members might serve as a resource placement for Mario. Although the mother again expressed that she wished her mother would do so, the maternal grandmother firmly stated that she was unable to serve as a placement for Mario "because of her arthritis," but reiterated she would assume physical custody of her three older grandchildren if necessary.*fn3 On October 23, Mario was transferred to the Newborn Nursery. By October 30, the hospital medical staff had been successful in weaning Mario off Phenobarbital.

On October 26, 2007, the Division filed a verified complaint for the care, custody, and supervision of Mario and the mother's three other children. The complaint named the mother, the father, A.C. and S.R. as defendants. Because we are concerned only with the termination of the father's parental rights to Mario, we will confine our discussion of the facts to those bearing on the issues raised on appeal. The judge signed an order to show cause that same day granting legal custody of Mario to the Division, with physical custody continuing at St. Joseph's Hospital.

At this hearing, the mother and A.C. were present; the father was not, even though the mother had advised him of the date. The Division caseworker explained to the judge that the Division had made several unsuccessful attempts to contact the father, and the mother also indicated that she had sent the father a text message about the appearance. The maternal grandmother also was not present.

Outside the courtroom, the mother indicated to the caseworker that the maternal grandmother was "now willing to take care of [Mario] because she [did] not want [Mario] to go to foster care." The mother also gave the caseworker her sister's contact information and stated that her sister might be willing to care for Mario. The Division was ordered to assess the maternal grandmother as a possible placement resource, but the order did not specify whether that possibility related to Mario or the mother's other three children. The mother was granted weekly supervised visitation at St. Joseph's Hospital.

On October 31, 2007, the mother again advised the Division that the maternal grandmother and her sister were both willing to care for Mario. The caseworker explained that Mario needed "constant and special care and supervision," and because of this he could not be placed with someone who did not have the required training. On November 1, the Division caseworker scheduled psychological evaluations by Dr. Ernest Perdomo for the mother, her three older children, A.C., and the father. She advised Dr. Perdomo that the father was not yet complying with services. Dr. Perdomo scheduled the appointments for the adults on January 4, 2008, and for the three oldest children on January 18.

On November 2, 2007, the maternal grandmother advised the Division that she wished to be considered as a possible caregiver for Mario. The Division supervisor explained that Mario had special medical needs and the maternal grandmother would be required to complete special training to appropriately care for his needs. The supervisor offered to provide transportation so the maternal grandmother could attend the training. The record does not disclose whether the grandmother agreed to participate in this training, but none was apparently ever arranged. The caseworker's efforts to contact the mother's sister were not successful although she left messages for her.

The Division found a suitable SHSP home for Mario, and on November 2, 2007, the foster mother and a Division caseworker went to get Mario from the hospital. Although Mario was ready to be released, the hospital staff informed the foster mother that he would still need special medical attention and follow-up appointments for, among other things, a Hepatitis C test and ophthalmology evaluation. The foster parents had three other children in the home, two biological children and one adopted child, who had been an SHSP baby.

On November 5, 2007, the Division confirmed with the mother that she would attend the next team meeting on November 8 and told her that she could include members of her support team.*fn4

The caseworker sent the father a letter advising him of this meeting. The Division transported the mother for visitation with Mario on November 7. During the visit, the mother advised the Division that she had spoken with the father, who "stated that he received the letter from the Division, and that he believed the baby was put up for the adoption." The mother assured the caseworker that she would be present for the team meeting, but she doubted that the father would be. She would try to have her sister attend. After the visit was over, the caseworker went to the father's home to serve him with a court order, but he was not there. That same day, the Division caseworker forwarded the maternal grandmother's contact information to another Division worker at the area office. Thereafter, the record is absent of any documentation respecting efforts by either the maternal grandmother or the Division to work towards the placement of Mario in the maternal grandmother's home.

During a conversation on November 13, 2007, the foster mother informed the Division caseworker that she had taken Mario for the Hepatitis C test and the appointment went well. Mario had gained two pounds since his hospital discharge. That same day, the Division contacted the mother and advised her that the maternal grandmother could begin attending visits with Mario the next day. The maternal grandmother, however, did not attend the visitation on November 14, although the mother did so. A contact sheet was prepared documenting this visit, but the Division caseworker assigned to this family did not prepare any contact sheets for the next five months. There are significant gaps in the contact sheets even thereafter.*fn5

The mother--but not the father--appeared before the court on November 28, 2007, for the return of an order to show cause. The maternal grandmother also did not appear. The judge ordered legal custody of Mario to remain with the Division and physical custody to continue in the SHPS home, but he did not change the previously ordered visitation except to require the Division to supervise the mother's visitation with Mario.

Despite the Division's multiple efforts to engage the father, the first contact he actually initiated was a letter dated December 14, 2007. The father informed the Division that he would be leaving "on tour on January 19, 2008," for an unknown period of time, but that he would contact the Division when he returned. He added: "I'll do whatever [it takes] to get my son back in my life."

The father first appeared before the Family Part judge on January 31, 2008. His son was now almost four months old. He and the mother waived their rights to a fact-finding hearing and stipulated that the mother used heroin on Mario's birthday, which placed the child at risk. The judge ordered the father to comply with psychological and substance-abuse evaluations and to submit to random urine screenings, including one that day. The father and mother were given weekly visitation to be supervised by the Division. Because the next contact sheet is dated April 22, 2008, the documentary evidence does not establish whether the father took advantage of visitation during the three months following this order.

On March 6, 2008, the Division referred the father for a substance-abuse evaluation. The referral form indicated that the father had on separate occasions in the past refused to allow the Division to take urine for drug testing. He was evaluated on March 18 and the Child Protection Substance Abuse Initiative (CPSAI) report diagnosed him on Axis I with opioid dependence in remission; Axes II and III were deferred, Axis IV was a history of legal problems and was unemployed; and Axis V was a General Assessment of Function score of fifty. The CPSAI counselor recommended that the father participate in a more extended assessment process before ruling out current drug use, but he never returned for the assessment, precluding any final diagnostic impression.

The father submitted to a psychological evaluation with Dr. Robert Kanen on March 19, 2008. During the evaluation, he admitted to a prior heroin addiction from 1996 to 1998 that he had supported by selling drugs, but that he had allegedly since overcome on his own. The evaluation also revealed the father had a previous felony conviction in 2000 for aggravated assault and another conviction in 1999 for possession of a controlled dangerous substance.

In terms of employment, the father stated he had been unemployed since September 2008. When that error was called to his attention, he seemed surprised that date had yet to occur, and he could not tell Dr. Kanen the actual date on which the evaluation was occurring. The father later told Dr. Kanen that he had previously worked as a taxi driver, but that he "gave it up" in October 2007 and had been unemployed since then.

The evaluation also noted the father had two other children (ages nineteen and ten at the time), both of whom were being raised by their respective mothers. The father was not in a relationship with either of these two women and lived instead with his mother. In addition, the father admitted to being $3000 in arrears in child support for the ten-year-old child. When asked about plans for Mario, the father revealed he had yet to meet his then five-month-old son. The father also reported his son would live with the mother, and although he explained he had no relationship with the mother, he stated he would have "one hundred percent" involvement with his son.

At the conclusion of the evaluation, Dr. Kanen reported the father to be in the low-average range of intelligence. Dr. Kanen did not diagnose the father as mentally ill, but found he had "severe personality problems that greatly interfere with his capacity to adequately function in daily life." Dr. Kanen further opined that the father "is prone to lose stability under stress, resulting in depressive moodiness, a potential for emotional outbursts, and a preoccupation with pessimistic and self-demeaning thoughts." Moreover, Dr. Kanen described the father as "frequently self-absorbed and [] not likely to be able to care for a child over an extended period of time." He concluded that the father "has severe parenting deficits" and, as a result, the son should not be returned to his care. Dr. Kanen recommended the father "find employment and stable housing[,]... complete parenting classes[,]... complete anger management[,]... [and] be involved in individual psychotherapy."

On April 22, 2008, the Division caseworker visited the mother and the three older children. The mother provided her with the paternal grandmother's telephone number in the event the Division needed to contact her. The next contact sheet was not entered until May 30. In the meantime, after advising the Division several times that the father had not yet participated in a more extended assessment of his substance abuse to rule out any current drug use, the CPSAI counselor discharged him on April 29, 2008.

At the May 8, 2008, hearing, the mother and A.C. appeared, but the father and S.R. did not. The judge continued Mario in the custody of the Division, with physical custody at the SHSP home. Supervised visitation was continued as previously ordered. The judge imposed no specific requirements on the father at this time.

Although one contact sheet was prepared on May 30, 2008, documenting some contact with the foster mother that day, two months would elapse before another contact sheet was prepared regarding visitation dated July 23, 2008. The caseworker asked the mother about the father, and she said that she had not seen him in a long time, although she continued to have contact with the paternal grandmother. The mother and her two daughters went to visit Mario, but the maternal grandmother did not despite the fact that the Division was transporting the family for visitation from the maternal grandmother's home. At this time, the foster mother stated that Mario "was not having any medical problems," and that prior evaluations indicated he did not need early intervention services.

At the August 7, 2008, compliance review, none of the parents appeared. The judge ordered the father to attend the substance-abuse evaluation and continued his supervised visitation. A permanency hearing was scheduled for October 23, 2008.

The next contact sheet relates to a September 30, 2008, contact with the foster mother, who advised the caseworker that Mario had been diagnosed with hip dysplasia and referred to a specialist for a splint. No further contacts with the natural or foster families were reported until October 22, 2008. At that time, the mother was not doing well with her substance-abuse treatment; her methadone dose had been increased. She was discouraged and concerned about the permanency hearing.

On October 23, 2008, the father, the mother, A.C., and S.R. appeared before the judge, at which time she issued a permanency order finding the Division's plan for termination of parental rights followed by adoption of Mario was appropriate. The judge found that the mother had a history of substance abuse and the father was not involved in the child's life. She also found that the Division had provided reasonable efforts, including a CADC evaluation, a psychological evaluation, substance-abuse treatment, parenting skills classes, family preservation services, monthly bus passes, assistance with utility bills, placement of Mario in a SHPS home, and supervised visits. She determined termination of parental rights was appropriate because the mother failed to maintain a drug-free status and the father had not made himself available to the Division or Mario. She required the Division to file an action to terminate parental rights or for kinship legal guardianship by December 5, 2008, with a review three days later. No services were ordered for the father. The judge ordered that the siblings were entitled to visitation to be arranged by A.C. and S.R.

II.

On December 5, 2008, the Division filed its verified complaint for guardianship seeking termination of parental rights as to Mario and presented an order to show cause. Among other things, the verified complaint alleged: "The Division has investigated all potential maternal and putative paternal resource placement possibilities, and none of the family members have offered themselves as potential caretakers for the child." The judge entered the order to show cause on December 5. In the order, the judge found that the mother, the father, and A.C. were entitled to counsel and that an attorney would be appointed if they could not afford counsel. The judge also stated in the order that if any of the parties failed to appear on January 23, 2009, the court could enter a default. Finally, the judge ordered the appointment of a law guardian for Mario.

None of the parents appeared at the abuse-and-neglect compliance review on December 8, 2008. The judge continued Mario in the custody of the Division and again ordered visitation for the mother and father as well as the siblings. She dismissed the father and Mario from the abuse-and-neglect litigation because the Division had filed this termination-of-parental-rights proceeding. The parents also did not attend the December 9 case management conference in the termination proceedings. There, the judge required the father to submit to paternity testing and ordered the Division to schedule psychological and bonding evaluations with Dr. Elizabeth Smith. Also on December 9, the mother obtained a temporary restraining order against the father.

The next mention of the maternal grandmother's interest in caring for Mario was on January 22, 2009, when Mario had been in foster care for fifteen months. This contact sheet documents an initial meeting between a different Division caseworker and the maternal grandmother relating to the failure of Mario's brother to attend school. The maternal grandmother was willing to assume custody of Mario and his seventeen-year-old brother. After discussing the situation with the maternal grandmother and Mario's brother, the caseworker developed a plan to have the older boy reside with his grandmother and attend school where she lived.

On January 23, 2009, the mother and father appeared for a case management conference in the termination proceedings. The judge continued supervised visitation for both and ordered the Division to provide make-up visits and assess the maternal grandmother as a potential caregiver for Mario. The father was again ordered to submit to paternity testing. On January 26, 2009, the father accompanied the mother to a supervised visit with Mario. This is the first documented visit by the father in the record.

The Division caseworker met with both maternal grandparents on February 3, 2009. They discussed a January 22 court order requiring that they register Mario's older brother in school and change his last name on his birth certificate. The order also required the Division to assess the maternal grandmother's home as a proper residency for the older brother. In particular, the Division caseworker informed the maternal grandmother that she would have to take "Pride classes." The maternal grandmother stated that she was willing to take physical custody of Mario, and the Division caseworker said she should attend visitation with Mario at the foster mother's home. The caseworker also explained that all members of the household would have to complete background checks again. The maternal grandmother "asserted that she is fully willing to cooperate to do anything that would allow the child to live with her," but the reference to "the child" appears to refer to the older brother. Finally, the caseworker commented that the home was in need of some repairs, but "presently allowable" for Mario and his older brother to live there.*fn6 On February 5, the Promis Gavel, Cari, and police checks indicated the maternal grandparents had no negative records; fingerprinting was scheduled for the following day.

On February 9, 2009, the caseworker informed the liaison worker from the Urban League, which was supervising visitation with Mario, that the maternal grandmother was interested in obtaining custody of him and that she must participate in the next scheduled visit with Mario on February 23. There is no supervised visitation log from the Urban League documenting whether this visit occurred and whether the maternal grandmother attended.

The father attended a court appearance on February 25, 2009. The judge ordered the father to attend psychological and bonding evaluations by Dr. Frank Dyer on dates to be scheduled by him. She ordered the Division to provide the father with parenting-skills classes, individual psychotherapy, anger management, employment vocational training, and housing assistance. The father was given two hours for visitation on Mondays to be supervised by the Division. The Division was ordered to transport Mario for paternity testing. The Division's Resource Family Licensing Unit was ordered to complete its assessment of the maternal grandmother as a possible resource placement for Mario as soon as possible. Finally, on March 12, laboratory results confirmed the father to be Mario's biological father.

It proved difficult for the Division to provide the ordered services and maintain contact with the father after the entry of this order. For instance, a February 25, 2009, certified-mail letter from a Division caseworker to the father came back to the Division as "unclaimed." The caseworker sent another certified-mail letter on March 13, 2009, to notify the father of upcoming parenting-skills classes. This letter came back "return to sender." The father was subsequently terminated from the parenting-skills classes for failure to attend. On April 14, 2009, the caseworker sent another certified-mail letter to the father regarding a referral for psychiatric counseling, and this letter also came back "unclaimed." The father made no effort to obtain the services ordered in his presence on February 25.

In addition to considering the maternal grandmother as a possible caretaker for Mario, the Division also investigated whether the paternal grandmother's home would be a suitable placement. On April 9, 2009, a Division permanency caseworker called the paternal grandmother to see if she was interested in being a resource caretaker for Mario. The paternal grandmother advised the caseworker that her employment schedule and small apartment prevented her from caring for the child. Further, the paternal grandmother could not provide the caseworker with names of any other family friends or relatives who could care for Mario. The Division mailed a rule-out letter to the paternal grandmother on April 16, 2009.

On April 29, 2009, the Division caseworker informed the Urban League that tests had established the paternity of the father and asked it to keep visitation open for the father even though the mother had been missing visits. He asked the Urban League to transport the father from his home for visitation and provided his address and telephone number. On May 5, 2009, the Division learned that the father was missing and no longer resided with his mother.

However, the father apparently appeared for the May 8, 2009, case management conference. In the judge's case management order, she required the father to attend psychological and bonding evaluations by Dr. Dyer on June 30, 2009, at 9:00 a.m. She again required the father to attend parenting-skills classes, counseling, and anger management. She ordered the Division to provide the father with extra visits with Mario to compensate for missed visits. Finally, she ordered the Division to confirm within two weeks whether Mario could be placed with the maternal grandmother as a possible relative caretaker. The judge scheduled the trial for July 13, 15, and 20, 2009.

On May 29, 2009, the Division caseworker advised the father by certified mail of an appointment for psychiatric counseling on June 22, 2009, at 2:30 p.m. A similar letter dated June 2, 2009, advised the father of anger management classes beginning on June 17, 2009, at 4:00 p.m. The Division obtained another referral for the father to attend parenting classes on June 3, 2009, and informed the father by certified letter the next day of the new cycle of classes, which started on June 9. The caseworker related that the father felt "he should not have to go through any services because his child was not removed from him when [the Division] got involved" but he was willing to comply with services in order to care for Mario. There is no evidence in the record that the father attended any of these services.

On July 6, 2009, Dr. Dyer advised the Division caseworker that the father failed to attend his individual psychological examination and his bonding evaluation with Mario, although the other evaluations were completed. The maternal grandmother's July 1, 2009, bonding evaluation did not go well. She admitted that she had seen Mario only three or four times before the evaluation. Except for Mario's asthma, she was not familiar with any of his special needs. Dr. Dyer observed her in a free-play session with Mario for twenty-five minutes. She stepped out of the room to get Mario from his foster father and Mario began to cry. After a brief distraction, he resumed crying and was very distressed. The grandmother asked Dr. Dyer if Mario's older brother could come into the examining room, which Dr. Dyer permitted. Mario kept crying even when his brother took him from his grandmother and continued to cry after he was returned to her. Mario remained very distressed even after ten minutes.

When his brother asked to have him back, Mario turned away from him. He refused to accept his bottle from his grandmother and refused cereal from his brother. Mario kept trying to go out to the waiting room, still crying loudly, and when his grandmother picked him up, he became "extremely distressed." He kept crying with a pacifier in his mouth, calmed down, and started crying again. Mario became exhausted from crying, would become drowsy, and begin screaming and crying. Dr. Dyer ended the session after twenty-five minutes.

Dr. Dyer questioned why the maternal grandmother had only expressed an interest after the child was over one-year old.*fn7

One reason the maternal grandmother provided Dr. Dyer for not immediately acting was that she believed the father was a violent person and she was under the impression the father would be visiting her home if Mario was in her care. However, Dr. Dyer compared this expressed reason with the explanation given by the mother that the maternal grandmother was disgusted that she had a fourth child by yet another man and refused to care for this new baby.

Dr. Dyer observed that the maternal grandmother had "many positive qualities that are desirable in a caretaker." However, he noted that she had not presented herself until Mario had been in placement for a year for reasons that were strongly disputed by the mother. He opined:

While [the maternal grandmother] is felt to be at least marginally acceptable as a caretaker for [Mario], taking into account all of the above factors, the child reacted in an extremely negative manner toward her.... Thus, for reasons having to do with [Mario's] attachment profile rather than any serious defect in the grandmother, I recommend that [the maternal grandmother] not be considered as a caretaker for [Mario].

That attachment profile was explored in the bonding evaluation with the foster parents. The foster mother explained that they had initially hoped that Mario would be reunited with his mother, whom they liked, but she and her husband wanted to adopt him from the time he was first placed with them if he could not be returned to his mother. She reported that the maternal grandmother had not been visiting Mario; that she "doesn't show up." Based on reports from the foster mother, Dr. Dyer completed Vineland-II Adaptive Behavior Scales and found that Mario had an overall developmental quotient that was borderline retarded. Dr. Dyer observed Mario with his foster parents for about twenty minutes. Mario was very friendly and smiled at Dr. Dyer during this session. He engaged in play, interacting with his foster parents.

Dr. Dyer found that Mario had a profound attachment to his foster parents:

To a reasonable degree of psychological certainty, the foster parents are this child's primary love objects and identification figures. It is the foster parents to whom [Mario] looks for nurturance, affection, emotional security, and protection. If he were to be removed from these foster parents, he would suffer a traumatic loss that would very likely produce a significant regression in his development and could conceivably aggravate his respiratory problems because of the elevated stress that such a loss would create.

Dr. Dyer recommended foster-home adoption for Mario.

III.

The termination action proceeded to trial on July 13 and 20, 2009. Although both parents were represented by counsel, neither they nor the maternal grandmother attended the hearings. The final Division caseworker assigned to the matter, Ray Brown, testified that he had been assigned to the case early in 2009. Brown testified that Mario was no longer classified as medically fragile, but he was receiving reactive adaptive therapy to address his response time to sights and sounds. In sum, the initial medical conditions requiring hospitalization at birth and placement in an SHSP foster home had subsided. Nevertheless, Mario's severe asthma still presented a problem and his cognitive and behavioral development needed to be monitored.

With respect to the father, Brown stated that the father's visitation with Mario "was very sporadic." The father never submitted to any drug screening. When Brown told the father what he needed to do to secure custody of Mario, he agreed to comply, but failed to do so. There were times when the father was lost to Division contact. Brown described attempts to visit the father in person in March 2009, but he and his mother blocked entry into their home. He tried without success in April 2009 to telephone both the father and the paternal grandmother. On May 5, 2009, the paternal grandmother informed the Division that the father no longer resided with her. Brown explained that the father's plan to have the mother care for Mario was not viable.

With respect to the maternal grandmother, Brown stated that the Division had physically assessed the maternal grandmother's home. The caseworker noted the maternal grandmother "has a lot of help in the home" and "her family is there to support her with anything." However, the Division's Resource Department was still in the process of exploring the maternal grandmother as a resource placement, and her home had not been licensed as of June 2009 because Mario's older brother, who lived with her, needed a "check exam," which was the only thing holding up the process. In fact, the Division had not ruled out the maternal grandmother at the time of trial.

Brown testified that he emphasized to the maternal grandmother in March or April 2009 that she needed to visit with Mario. When asked whether any visits between the maternal grandmother and Mario were documented, Brown responded that he had kept visitation logs but these logs were not produced as evidence for trial. Nevertheless, Brown estimated that the maternal grandmother had visited "maybe like three" times since March 2009, which was consistent with her statement to Dr. Dyer.

Brown acknowledged that on May 8, 2009, the judge had ordered the Division to confirm within two weeks whether Mario could be placed in the maternal grandmother's home and that the Division's Resource Department had not adhered to this order. However, the Division's plan for Mario became foster-home adoption after it received Dr. Dyer's July 6, 2009, report even though it had not ruled out the maternal grandmother. Brown agreed with Dr. Dyer's recommendations and asserted it was the Division's position that neither the mother nor the father could adequately parent Mario then or in the future. Because the foster family could provide permanent care and support for Mario and Mario was bonded with them, the Division advocated that adoption would be the best option for the child.

Dr. Dyer also testified at trial that Mario was both an emotionally and behaviorally fragile child. Specifically, Mario "has been throwing himself around, doing dangerous things like hurling himself off steps[, and being] aggressive with other children." Dr. Dyer opined that such behavior was not unusual for children who have been exposed to heroin in the womb. Dr. Dyer further testified that the exposure to heroin had impaired Mario's language skills and social maturity. In short, Dr. Dyer reiterated the findings from his psychological and bonding evaluations and concluded that it would be in Mario's best interests for his foster parents to adopt him.

During his summation, the father's attorney contended that, because the father had yet to complete the Division's recommended services, there was no evidence to demonstrate his ability to parent Mario. The father's attorney also questioned the Division's efforts to seek alternative placement with the maternal grandmother and noted that the home assessment for this placement was never completed.

The law guardian argued that the Division had satisfied the first, second, and fourth prongs of the best-interests test. However, she questioned whether the Division had provided clear and convincing evidence it had sought alternative placements for Mario. She acknowledged that Mario "has had the good fortune to be cared for by a wonderful foster family who has literally nursed him to health." However, the law guardian described the mother as a "devoted parent" despite her problems. Further, Mario's siblings "adore him." Placing Mario with a "relative placement [would] allow[ him] to remain with the family and... maximize[ his] contact with siblings [and] parents while the parents rehabilitate themselves." "What the Division did here is deprive [Mario] of the opportunity to be raised by his family." Therefore, the law guardian recommended extending the time to make a final decision. She advocated for a structured intensive visitation program so that Mario could ultimately be transferred to his maternal grandmother if deemed appropriate.

The judge issued a written decision on July 24, 2009, terminating the parental rights of the father and mother. Regarding the father, the judge determined he had "not played a large role" in Mario's life and had "abandoned his son." This "lack of involvement" had harmed and continued to harm Mario. Second, the judge found the father had refused to eliminate the harm: he had not found suitable housing; he had failed to comply with the services provided by the Division; and Dr. Kanen found the father to have severe parenting deficits. Furthermore, even though Dr. Dyer could not testify to the bond between the father and Mario, the judge noted the father did not visit the child for the first five months of his life, did not consistently visit with him thereafter, and did not attend court hearings on the matter. Thus, "it would not cause more harm than good to terminate [the father's] parental rights."

As for the Division's efforts to seek alternatives to termination, the judge noted that "[n]either [parent] provided the [c]court with any psychological or... bonding evaluation for... the maternal grandmother." The judge commented that there was no evidence that the maternal grandmother was willing to adopt Mario. Based on Dr. Dyer's testimony and the goal to provide permanency in Mario's life, the judge found no alternatives to termination. This decision is memorialized in a judgment of guardianship of the same date. This appeal followed; the mother did not appeal.

IV.

The father appeals the termination of his parental rights, asserting that the judge erred in concluding the Division had demonstrated by clear and convincing evidence that termination was in the best interests of Mario. The Division and now the law guardian disagree and contend the decision to terminate was clearly in Mario's best interests.

A termination-of-parental-rights case is governed by the four-part "best interests of the child" standard set forth in N.J.S.A. 30:4C-15.1(a). This standard focuses "on whether the parent has harmed or is likely to continue to harm the child." In re Adoption of Children by G.P.B., 161 N.J. 396, 412 (1999). Parental rights can only be terminated 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 parent would cause serious and enduring emotional or psychological harm to the child;

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

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

This statutory standard is "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999). In other words, "[t]he four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

Our Supreme Court first articulated this standard in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 604-11 (1986). In doing so, the Court balanced the competing interests of the State to "'protect minor children from serious physical or emotional harm'" against the fundamental right to parent one's children. Id. at 599 (quoting In re Dep't of Pub. Welfare, 421 N.E.2d 28, 36 (Mass. 1981)); see also K.H.O., supra, 161 N.J. at 347. Because "[t]ermination of parental rights permanently cuts off the relationship between children and their biological parents," In re Guardianship of J.C., 129 N.J. 1, 10 (1992), the State must prove the four-prong standard by clear and convincing evidence, A.W., supra, 103 N.J. at 612. That is, the standard requires the Division to present clear and convincing proof that "'the child's best interests will be substantially prejudiced' if parental rights are not terminated." J.C., supra, 129 N.J. at 8 (quoting A.W., supra, 103 N.J. at 603).

At the same time, there is a "strong public policy in favor of permanency." K.H.O., supra, 161 N.J. at 357. To achieve permanency, the Division must institute a termination proceeding when the best interests of the child demand such action. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505-06 (2004); N.J.S.A. 30:4C-15.1(a). Further, a petition to terminate parental rights should be filed "no later than when the child has been in placement for 15 of the most recent 22 months." N.J.S.A. 30:4C-15; N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 65 n.7 (App Div. 2003), aff'd in part and modified in part, 179 N.J. 264 (2004).

When reviewing a termination-of-parental-rights matter on appeal, we should not disturb the judge's factual findings "unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Further, we defer to the fact findings of a Family Part judge because the judge has "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998). However, our "obligation to defer to the trial court does not extend to issues of law." Div. of Youth & Family Servs. v. M.M., 382 N.J. Super. 264, 272 (App. Div. 2006) rev'd in part on other grounds, 189 N.J. 261 (2007).

A.

The father first contends that the record lacks evidence demonstrating he threatened Mario's health and asserts the judge erred as a matter of law in concluding he had abandoned his son. The Division responds that the father's "willful failure to visit and maintain contact with his son, willful failure to comply with rehabilitative services,... and willful failure to maintain housing and financial stability[] have endangered the welfare of [Mario] and have put his safety, development and well-being in jeopardy."

Under N.J.S.A. 30:4C-15.1(a)(1), the judge must evaluate whether the "child's safety, health or development has been or will continue to be endangered by the parental relationship." The demonstrated harm "must be one that threatens the child's health and will likely to have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. This prong requires analysis of the physical and emotional harm to the child. A.W., supra, 103 N.J. at 604-05.

A parent's "inability to provide any nurturing or care for [the child] for [a] prolonged period is a harm... that is cognizable under the best interests standard." K.H.O., supra, 161 N.J. at 356 (citation omitted). In other words, a "parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379 (citation omitted).

Here, the father failed to demonstrate even minimal parenting to Mario. He did not come forward at Mario's birth, despite knowing the mother did not have custody. In fact, the father did not meet his son until at least five months after the birth and possibly not until Mario was over a year old. Further, the Division offered uncontroverted evidence that the father would be unable to care for Mario through the psychological examination by Dr. Kanen, who opined the father's lack of stable housing and employment, history of substance abuse, inadequate parenting of his other two children, and severe personality problems all made him incapable of caring for Mario. The father offered no evidence at trial that this situation had changed. The father's "inability to provide any nurturing or care for [Mario] for [a] prolonged period," K.H.O., supra, 161 N.J. at 356, demonstrates that the first prong was proven by clear and convincing evidence.

The judge did not err in concluding that the father "abandoned" Mario, a finding not required to support the first prong. In any event, it is clear that the judge was not invoking the abandonment standard, an alternative to the best-interests test, contained in N.J.S.A. 30:4C-15(d). See D.M.H., supra, 161 N.J. at 375-79 (discussing the distinction between the best-interests test and the abandonment standard). The judge's decision that the father had harmed Mario by his utter lack of parenting is clearly supported by the record.

B.

The father also argues that the Division "has failed to demonstrate, by clear and convincing particularized evidence, the unwillingness or inability by [him] to eliminate the harm that faced [Mario] or provide a safe and stable home." Rather, he contends "he was not given sufficient time and opportunity to demonstrate his willingness to engage in the necessary services to either eliminate the purported harm facing [Mario] or provide a safe and stable home for [Mario]." The Division and the law guardian contend this argument is without merit. We agree.

The second prong of the best-interests standard requires the trial judge to "determin[e] whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. Rather than focus on past harms to the child, the judge's analysis centers on whether "it is reasonably foreseeable that the parent[] can cease to inflict harm upon the children entrusted to [his] care." A.W., supra, 103 N.J. at 607. The judge should consider factors of "parental dereliction and irresponsibility, such as... the inability to provide a stable and protective home [and] the withholding of parental attention and care." K.H.O., supra, 161 N.J. at 353. Finally, a parent who does not immediately and expeditiously move to address the reasons why the Division has placed the child in foster care is jeopardizing future reunification with the child. Id. at 356.

We find no merit to the father's contention that the Division failed in its responsibilities to refer him for recommended services and deprived him of the opportunity to demonstrate he was willing and capable to eliminate the harm to Mario. The father knowingly neglected to participate in the extended substance-abuse assessment which would have provided information about his substance abuse; refused to provide urine samples; refused parenting-skills classes; refused anger management; refused a bonding evaluation; and only sporadically availed himself of visitation with Mario. This "sporadic" visitation with Mario further sustains the judge's decision, fully supported by clear and convincing evidence, that the father was unwilling to eliminate the harm caused by his lack of parenting.

C.

The third prong of the best-interests standard examines the Division's efforts to reunite the family. N.J.S.A. 30:4C-15.1(a)(3). Efforts should "focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354 (citation omitted). New Jersey has long recognized the importance of keeping the family as an "intact social unit." A.W., supra, 103 N.J. at 608. When conditions do not exist to permit the child's return to the parent, an alternative is to place the child with relatives. Id. at 609.

Reasonable efforts at reunification may include:

(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.

[N.J.S.A. 30:4C-15.1(c).]

The New Jersey Administrative Code also provides guidelines for the Division to "provide services to the family according to a case plan, including enlisting the assistance of relatives, providing direct services, or providing referrals to community services providers." D.M.H., supra, 161 N.J. at 387 (citing N.J.A.C. 10:133I-4.2(a)). Moreover, the "guidelines provide that [the Division] must monitor the services, change them as needs arise, and identify and strive to overcome 'barriers to service provision or service utilization.'" Ibid. (quoting N.J.A.C. 10:133I-4.2(b)(2)).

However, circumstances may arise when reunification is not possible. For example, reunification may no longer be reasonable when a parent refuses to engage in therapy or other services. A.W., supra, 103 N.J. at 610. Moreover, how diligent the State is in pursuing reunification is measured independently from how successful the parent is with the reunification efforts. D.M.H., supra, 161 N.J. at 393. In other words, "the parent's failure to become a caretaker for his children is not determinative of the sufficiency of [the Division's] efforts at family reunification." Ibid.

Furthermore, in D.M.H. the Court found it "reasonable for [the Division] to continue to focus its efforts of family reunification on [the] custodial parent, so long as [the Division] does not ignore or exclude the non-custodial parent." Ibid. The Division's "efforts should be considered in terms of the family as a whole in determining whether those efforts have been diligent within the meaning of N.J.S.A. 30:4C-15.1(a)(3)." Ibid.

Here, the father first contends the Division did not satisfy this prong of the best-interests test because it "essentially ignored [him] from the inception of [its] involvement in October 2007 until March 2009." This assertion, however, clearly contradicts the record. As the Division points out, it made several attempts to contact the father immediately after Mario's birth to include him in family planning meetings and to inform him of court appearances. Moreover, the Division facilitated the CPSAI evaluation and the psychological evaluation by Dr. Kanen in March 2008. The Division did pursue Dr. Kanen's recommendations in June 2008 by referring the father to parenting classes and anger management and did so again in February, March, and April 2009 when it included psychiatric counseling in its referrals. The failure of these referrals cannot be attributed to any lack of reasonable efforts by the Division. Rather, the father failed to attend the follow-up extended drug assessment and essentially made himself unavailable for the remainder of 2008. Furthermore, once the Division again made referrals for services in the spring of 2009, the father elected not to participate. Throughout this time, the father's visitation with Mario was sporadic.

The Division did not ignore the father in its efforts to reunify the family. Ibid. The facts of this case are a far cry from those in New Jersey Division of Youth and Family Services v. C.M., ___ N.J. ___, ___ (2010) (slip op. at 2-3), which concerned a father who delayed in stepping forward because "the revelation that he had an out-of-wedlock child rocked his stable and successful marriage... which had served as the center for successfully nurturing four other children." Here, the father never actually stepped forward with a plan to care for Mario and did not even appear for the trial. We find no error in the judge's determination that the Division proved by clear and convincing evidence it made reasonable efforts to reunite Mario with his father.

Next, the father asserts the Division failed to adequately seek alternatives to termination in that the Division erroneously dismissed the maternal grandmother as a viable caregiver. The Division contends it acted reasonably when the maternal grandmother initially expressed her interest in caring for Mario by immediately offering her the opportunity for visitation with the child.

There is fertile ground here to severely criticize the Division's failure to document many months of interaction with this family. Notably, the Division has failed to explain what efforts were made during the gaps between November 2007 and January 2009, when records next indicate the Division spoke with the maternal grandmother about caring for Mario. This failure left the Division with scant proof of its interaction with the maternal grandmother and should not be repeated in future cases. The Division must also be criticized for failing to obey court orders that required it to finalize the licensing process or rule out the maternal grandmother before the termination trial.

Those failings, however, do not undermine the soundness of the judge's determination. Here, the maternal grandmother's actions speak loudly. Shortly after Mario's birth, the maternal grandmother twice refused to assume custody of Mario, once on October 18, 2007, and again the next day. She only visited her grandchild on three or four occasions between October 3, 2007, and July 1, 2009, as she admitted to Dr. Dyer. She essentially had no relationship with Mario, as the bonding evaluation so painfully disclosed. She did not attend any court proceedings, not even the termination trial. In short, she did not present herself as a viable placement option. As a consequence, we are satisfied that the Division proved through the clear, convincing, and undisputed testimony of Dr. Dyer that there were no viable alternatives to foster-home adoption.

Finally, the father argues the judge should have considered kinship legal guardianship as an alternative to termination. However, as the Division points out, the father's reliance on this alternative is misplaced. Kinship legal guardianship is an alternative to adoption that can only be employed when adoption is neither feasible nor likely. P.P., supra, 180 N.J. at 508. Thus, if adoption is readily available, kinship legal guardianship "cannot be used to defend against termination of parental rights." N.J. Div. of Youth & Family Servs. v. D.H., 398 N.J. Super. 333, 341 (App. Div. 2008). Here, foster-home adoption was feasible and likely.

D.

Lastly, the father urges the Division did not prove by clear and convincing evidence that terminating his parental rights will not do more harm than good. This claim is based upon the arguments he advanced under prongs one and two. The Division and the law guardian contend that prong four was established by clear and convincing evidence.

The final prong of the best-interests analysis requires the judge to find that the termination of parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). We analyze this prong with the need for permanency in the child's life firmly in mind. A.W., supra, 103 N.J. at 610. This inquiry does not "require a showing that no harm will befall the child as a result of the severing of biological ties." K.H.O., supra, 161 N.J. at 355. Rather, the analysis considers both the biological and foster relationships. Ibid. The question is whether "the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." Ibid.

This requires an inquiry into the relationship the child has with both the biological and foster parents. Ibid. Importantly, "[t]o show that the child has a strong relationship with the foster parents or might be better off if left in their custody is not enough." J.C., supra, 129 N.J. at 19. Rather, the Division "must prove by clear and convincing evidence that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm." Ibid.

Here, as the judge explained, the fact that Dr. Dyer could not testify to the bond between the father and Mario is significant for it demonstrates that Mario "is not a priority" of his father. By contrast, Dr. Dyer's bonding evaluation of the foster parents demonstrated Mario "has developed a profound attachment" and severance of this bond would cause Mario to "suffer a traumatic loss that would very likely produce a significant regression in his development and could conceivably aggravate his respiratory problems because of the elevated stress that such a loss would create." Additionally, Dr. Dyer expressed concern regarding whether it was too late for a bond to form if the maternal grandmother were provided more opportunities for visitation with Mario. Dr. Dyer cautioned that lengthening the time to finalize Mario's permanent placement would lead to a "greater cognitive maturity[,] deeper attachment to his foster parents and greater likelihood of a true traumatic loss resulting in very serious harm." This was more than sufficient evidence to conclude that the Division had proven by clear and convincing evidence that termination of parental rights would not do more harm than good.

Affirmed.


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