December 23, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.K., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part Essex County, No. FG-07-60-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 3, 2010
Before Judges Wefing, Payne and Baxter.
B.K. appeals from a trial court judgment terminating her parental rights to her daughter A.K., now four years of age. After reviewing the record presented on appeal, we affirm.
B.K. has five other children; none are in her care. Her parental rights to two of her children have been terminated. She pled guilty to aggravated assault and endangering the welfare of a child after having shaken one of these children when he was only months old because he would not stop crying. She shares legal custody of three of her children with her mother, but the children reside with their grandmother, not with B.K. They range in age from eighteen to sixteen years old; the oldest has two young children of her own.
B.K. has a long-standing problem with substance abuse. At least three of her older children tested positive for narcotics at birth. When A.K. was born in September 2006, she tested positive for cocaine and methadone and experienced withdrawal symptoms. She was also tested positive for exposure to Hepatitis C, which she had contracted from B.K. A.K. was classified as "medically fragile" and remained in the hospital for more than a month after her birth. The New Jersey Division of Youth and Family Services ("DYFS") was granted custody of A.K. when she was discharged from the hospital.
DYFS's initial goal with respect to A.K. was to place her with a family member while B.K. obtained treatment for her drug problems. To this end, it arranged for B.K. to receive a drug evaluation, drug treatment, a psychological evaluation and supervised bi-weekly visits with A.K. She missed a great many of her visitations, however. The case worker who testified at trial had been in charge of the matter for more than a year; she said that in that time B.K. visited with A.K. approximately ten times. B.K. also regularly failed to attend appointments that had been scheduled for drug evaluation. DYFS assessed her level of cooperation as "poor."
In August 2007, when A.K. was nearly one year old, B.K. had a psychological evaluation performed by Albert R. Griffith, Ed.D. She told Dr. Griffith that she had remained drug free for six months, but she had made no plans for A.K.'s care. Approximately six weeks later, B.K. tested positive for cocaine, heroin and benzodiazepines.
Three months after B.K.'s psychological evaluation, DYFS arranged for a psychological evaluation of her mother, to evaluate whether she was a suitable care giver for the infant A.K. This evaluation was performed by Mark Singer, Ed.D. The results of this evaluation showed that she was illiterate, had an IQ substantially below average, was emotionally immature and had "difficulty dealing with ambiguity." Dr. Singer testified that B.K.'s mother tended to "see the world in black and white . . . . it's all good or all bad." In Dr. Singer's opinion, while she could care for older children, "she would have significant difficulty caring independently for a young child with special needs."
In January 2008, DYFS notified B.K.'s mother that it had eliminated her as a potential caregiver for A.K. It cited the results of the recent psychological evaluation, its concern that she would not restrict B.K. from having access to A.K. and the fact that her age (65 at the time), combined with her responsibilities for the older children, would make caring for a child such as A.K. even more difficult.
B.K. continued to miss appointments for a drug abuse evaluation. In July 2008, she attended a court hearing and was tested for narcotics. The results were positive for cocaine and methamphetamine. As a result, the trial court entered an order exempting DYFS from making further efforts to reunite B.K. with her daughter, A.K., who by then was nearly two years old. In September 2008, DYFS filed a complaint seeking to terminate B.K.'s parental rights with respect to A.K.
Dr. Griffith performed another psychological evaluation of B.K. in December 2008. At that point she told him she had been drug-free for two months. Dr. Griffith concluded that in light of her minimal progress in overcoming her substance abuse and her repeated relapses, the prognosis for reunification between B.K. and A.K. was poor. Dr. Griffith also conducted a bonding evaluation between B.K. and A.K. He reported that A.K. saw B.K. as a familiar face but did not look to her for nurturance, security or protection. He noted that A.K. easily separated from her in contrast to the anxiety she initially displayed when her foster mother left the room. In Dr. Griffith's opinion, A.K. would not suffer irreparable harm if B.K.'s parental rights were terminated.
In January 2009, DYFS found it necessary to transfer A.K. to another foster family because the family with whom she had been residing had inadequate housing. A.K. has remained with this foster family, and they are committed to her adoption. This is her third placement. In April 2009, Dr. Griffith conducted a bonding evaluation between A.K. and this foster family. He found her to be "emotionally attached" to them and that her foster parents "appear[ed] to provide a loving and supportive home" for her. He noted that A.K. was "less resilient" than other children in light of her developmental delays and was at risk of being damaged by an attempted reunification that ultimately failed.
Also in April 2009, Dr. Singer conducted another evaluation of B.K.'s mother to determine again whether she was a viable candidate to care for A.K. He again noted her limitations as well as the fact that she admitted to him that she permitted B.K. to have unsupervised visits with the older children despite her knowledge of B.K.'s drug abuse.
A number of other evaluations were performed prior to the trial of this matter. On May 16, 2009, Gerard A. Figurelli, Ph.D., examined B.K.'s mother at the request of B.K.'s attorney. His report noted that she was then 67 years old and was caring for B.K.'s three children as well as the two young great grandchildren in her three-bedroom apartment. He noted that despite her limitations, she was able to function independently. Dr. Figurelli concluded that B.K.'s mother "possesses the capacity to act adequately in a parenting role," but should "participate in parenting skills or education" to help her parent a child such as A.K.
In July 2009, Dr. Figurelli also performed a bonding evaluation of A.K. with her grandmother, who brought her great-grandchild with her, and he observed that A.K. ran after the two of them when they left the room. He concluded that A.K. had a "significant positive emotional attachment" with her grandmother and that there is a "basis for the development of a full reciprocally bonded relationship" between them but that it had not yet been developed.
A few days later, Dr. Figurelli assessed the bond between A.K. and her foster parents. He noted that A.K. consistently referred to her foster mother as "Mommy," was much more verbal with them than she was with her grandmother, and that she appeared to be thriving in their care. Dr. Figurelli concluded that A.K. was developing a "positive emotional attachment" to her foster parents and that the basis for a full reciprocally bonded relationship was there but had not yet been developed since A.K. had only been with them for seven months. In his opinion, A.K. could "be removed from the care of her foster parents and placed with [her grandmother] without experiencing harm that is severe or enduring in nature." He stated further that, if ties to her biological family were severed, A.K. would experience severe "psychological harm" later on in life.
In September 2009, Dr. Singer conducted a bonding evaluation of A.K. with her grandmother. He observed that three-year-old A.K. did not speak or babble at all in her grandmother's presence and that being comfortable enough to speak indicates attachment. He also noted that, when he asked the grandmother to leave the room to test how A.K. would detach from her, she repeatedly called A.K. to come to her. When A.K. did not come and, instead, moved closer to Dr. Singer, the grandmother said: "I'm going to leave you. You didn't come to me." Thereafter, the grandmother appeared to feel rejected by A.K. and did not engage or speak to the child for the rest of the session. Thus, Dr. Singer concluded that a secure, mutual attachment had not been developed between A.K. and her grandmother.
Later, Dr. Griffith conducted a third updated psychological evaluation of B.K. He noted that B.K. remained "immature, impulsive and relatively self-centered." B.K. appeared unaware of A.K.'s speech delay. However, Dr. Griffith did note that, according to B.K., she had made some progress in addressing her drug abuse by attending Narcotics Anonymous and outpatient therapy. Although B.K. made a "grandiose statement of desire to get custody of all her children," he noted this was not supported by her efforts; she had not made any realistic plan to care for A.K. other than leaving her with B.K.'s mother, who was already caring for five children. Accordingly, his conclusion about B.K.'s inability to parent A.K. remained the same.
Dr. Griffith also performed a second bonding evaluation of B.K. with A.K. He noted B.K.'s lack of recognition of A.K.'s speech impairment and the fact that A.K. was too uncomfortable to speak around B.K., as she did with her foster mother. Dr. Griffith concluded:
She has some attachment to [B.K.]. It is not a significant bonding. She separates easily, is a passive participant with [B.K.] and does not appear to look to her for protection. Given any change a child with limited resiliency must be seen as being placed at risk. This mother has still not demonstrated stability after 2 years. Her case for reunification appears to rest more on hope than reality. The risk of harm from adoption by the [foster parents] appears less than the risk of harm from a failed placement with [B.K.].
That same day, Dr. Griffith also assessed the bond between A.K. and her foster mother. He noted that A.K. repeatedly addressed her as "Mommy" and that the foster mother had been diligent in arranging for A.K. to receive the speech therapy that she required. Dr. Griffith determined that A.K. was developing a growing attachment to her foster mother and was building some security in their home. He concluded:
[A.K.] has already been transferred from one home. If she has to go to a home and that placement fails, her loss will then become very substantial. [A.K.] has made progress in her present home. [B.K.] is still not ready for custody and there is reason to doubt that she will become ready in the immediate future. Given that circumstance, it would be better to terminate custody and let the child be adopted by the [foster parents]. It is unlikely that [A.K.] will suffer any loss if she no longer sees [B.K.] since she has played such a tangential role in her life.
Drs. Griffith, Singer and Figurelli all testified at trial, setting forth the conclusions they had each reached in their earlier reports, and the reasons they had for reaching those conclusions. Dr. Griffith, who had conducted bonding evaluations of A.K. with B.K. and with her foster parents, testified that in his opinion A.K. would suffer irreparable harm if she were separated from her current foster placement and, further, would suffer no harm if B.K.'s parental rights were terminated.
B.K. and her mother both testified as well. B.K. recognized that she was unable to care for A.K. but said she wished the child to be with her mother because she knew her mother would "raise my daughter right," and she wanted to be able to continue to see the girl. B.K.'s mother testified that she considered herself able to raise A.K. She noted that she was able to give the older children their asthma medications when they needed them. She said the fact that there were already six people living in her three-bedroom apartment ranging in age from eighteen years to nine months was not a problem; she said she would get a folding bed for A.K. and put it in her room. She was not aware that A.K. had any delays in her development and minimized B.K.'s substance abuse problem, saying she only had a problem with "little drugs." After the conclusion of the trial, the trial court placed its decision on the record, concluding that B.K.'s parental rights to A.K. should be terminated.
On appeal, B.K. raises the following contentions.
THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S PARENTAL RIGHTS SHOULD BE TERMINATED AS THE STATE FAILED TO PROVE, BEYOND THE REQUIRED CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF THE PARENTAL RIGHTS WAS APPROPRIATE.
A. The Child's Health and Development Was Not Endangered By The Parental Relationship.
B. The Defendant Was Able and Willing To Eliminate The Harm Facing The Child And Was Able And Willing To Provide A Safe And Stable Home For The Child.
C. The Division Did Not Make Reasonable Efforts To Provide Services To Correct The Circumstances Which Led To The Child's Placement Outside The Home.
D. Termination of Parental Rights Will Do More Harm Than Good.
We first note the legal principles that govern our consideration of these arguments.
"[P]arents have a constitutionally-protected, fundamental liberty interest in raising their biological children, even if those children have been placed in foster care." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166 (2010) (quoting In re Guardianship of J.C., 129 N.J. 1, 9 (1992)). In view of that, the law "clearly favors keeping children with their natural parents and resolving care and custody problems within the family." Id. at 165 (citation omitted).
However, parental rights are not absolute; the State also has a "parens patrie responsibility to protect the welfare of children" in situations where the child's parent is unfit or the child has been neglected or harmed. Id. at 166 (citation omitted); see also In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Accordingly, the State may petition to terminate parental rights on the grounds that it is in the "best interests of the child" to do so. To prevail on its claim, the State must establish, by clear and convincing evidence, four statutory factors:
(1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).]
The four prongs of the best interests standard "are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." I.S., supra, 202 N.J. at 167 (citations omitted). When the child's biological parents resist termination of their parental rights, the "cornerstone of the inquiry" is not whether they are fit, but whether they "can cease causing their child harm." Ibid. (quoting In re J.C., supra, 129 N.J. at 10). DYFS has the burden to prove "that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re J.C., supra, 129 N.J. at 10 (citation omitted).
Given a parent's constitutional right to raise his or her own child, the burden of proof required before that right can be terminated is high - DYFS must prove each of the four prongs by "clear and convincing evidence." I.S., supra, 202 N.J. at 168 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 612 (1986)). The burden of proving a case by clear and convincing evidence is an intermediate one, that is, proof greater than by the preponderance of the evidence and yet not proof beyond a reasonable doubt. "The clear and convincing standard 'should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.'" Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (quoting Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960)). Here, the trial court determined, after a two-day trial, that DYFS had proven all four prongs by clear and convincing evidence.
Appellate review of a trial court's decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). In general, the trial court's findings will not be disturbed on appeal if they are supported by "substantial credible evidence in the record."
N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re J.N.H., supra, 172 N.J. at 472); see also Cesare v. Cesare, 154 N.J. 394, 412 (1998).
Furthermore, the fact-finding of the Family Part is entitled to particular deference given their "special expertise in the field of domestic relations." Cesare, supra, 154 N.J. at 413. Deference is also especially appropriate "when the evidence is largely testimonial and involves questions of credibility," since the trial court had the opportunity to see and hear the witnesses testify firsthand. Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
Guided by these principles, we are firmly satisfied that B.K.'s contentions lack merit and that the trial court's judgment should be affirmed. The record is replete with evidence that establishes the first prong, that A.K.'s safety, health or development was endangered by her relationship with B.K. N.J.S.A. 30:4C-15.1(a)(1). A.K. tested positive at her birth for cocaine and methadone and had to go through withdrawal. She also had Hepatitis C and was initially classified "medically fragile." In addition, she has various developmental delays.
In K.H.O., the New Jersey Supreme Court specifically held:
[A] child born addicted to drugs and suffering from the symptoms of drug withdrawal as a result of her mother's substance abuse during pregnancy has been harmed by her mother and that harm endangers the child's health and development. That determination satisfies the first prong of the best interests standard. [In re K.H.O., supra, 161 N.J. at 349.]
Under the second prong, DYFS must show that B.K. is unwilling or unable to eliminate the harm that her drug abuse posed to A.K.
N.J.S.A. 30:4C-15.1(a)(2). Alternatively, DYFS could also show that B.K. has failed to provide "a safe and stable home" for A.K. and that a "delay in permanent placement" will further harm the child. Ibid.
The New Jersey Supreme Court had held that this prong may be satisfied in several ways. For one, it may be met by: indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child. [In re K.H.O., supra, 161 N.J. at 353.]
It may also be met by showing that "the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of her bond with foster parents." Id. at 363.
Here, the trial court found that the second prong was met because:
[B.K.] has been unable to care for her daughter or any of her children. During the pendency of this litigation, she was incarcerated on outstanding warrants. She continues to have starts and stops with drug abuse. Her visits have been inconsistent and interfere with her daughter's attempts to grow closer to her.
The bonding evaluation suggests that there's a significant emotional attachment between [A.K.] and the foster parents. More specifically, [A.K.] and the foster mother. There's another child in the home with whom [A.K.] is developing a relationship. She has been in this home for approximately a year. Her attachment to her foster parents is such that she would be harmed if she were to be removed from their care. [A.K.] has been diagnosed with developmental delays. Further delaying a permanent placement with her foster parents may exacerbate the harm already suffered by this child who has had several placements.
Defendant argues that the trial judge erred in finding that the second prong was met because: (1) she gave too much weight to the evaluations of Dr. Singer and Dr. Griffith and not enough weight to Dr. Figurelli's evaluations; (2) B.K. had made some progress in addressing her drug abuse issue by attending a drug treatment program; and (3) B.K. had offered her mother's home as a safe and stable home for A.K.
First, to the extent that defendant is disputing the weight that the trial judge accorded to various experts' testimony, deference ought to be granted to the trial judge's credibility determinations in this case. N.J. Div. of Youth & Family Servs. v. M.M., 382 N.J. Super. 264, 271 (App. Div. 2006) (citing Cesare, supra, 154 N.J. at 411-13). Quite simply, a trial court is in a better position than an appellate court to evaluate an expert witness' credibility, qualifications, and the weight to be accorded to his testimony. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)).
Second, the trial court did duly consider that B.K. had made some progress in addressing her drug abuse issue; however, her long history of relapse and the fact that she had relapsed and tested positive twice during the pendency of this litigation, gave the trial court and Dr. Griffith little hope that B.K. could remain drug-free for long. In K.H.O., the Court was faced with a mother who had a similar history of "chronic, unresolved drug abuse" and who had likewise shown some progress in her rehabilitation. In re K.H.O., supra, 161 N.J. at 353. However, the Court found that her pattern of relapse and positive drug test in court gave "no indication that [she] will successfully rehabilitate herself sufficiently to care for her daughter." Ibid. Considering this, along with the fact that waiting to permanently place the child until the mother could "assume a responsible parental role" would harm the child by disrupting her relationship with her foster parents, the Court found that the second prong was met. Id. at 354.
Third, defendant also argues that the fact that she had offered her mother's home as a safe and stable home for A.K. should negate this prong. That argument misses the mark, however. It does not address whether B.K.'s parental rights should be terminated, the question before the trial court.
Thus, there was substantial, credible evidence in the record from which the trial judge could have determined that the second prong was satisfied under both alternative routes contained in the statute: (1) B.K. was unable to overcome her drug addiction; and (2) B.K. failed to provide a "safe and stable home" for A.K. that would eliminate the harm that B.K. poses to A.K. and delaying permanent placement until the grandmother's home could be re-evaluated or B.K. recovers from her drug addiction would further harm A.K.
Under the third prong, DYFS must show that: (1) it made "reasonable efforts" to provide B.K. with services to correct her drug abuse so that family reunification may be possible; and (2) that the court has considered alternatives to terminating B.K.'s parental rights. N.J.S.A. 30:4C-15.1(a)(3).
As for the first part of that prong, "reasonable efforts" are defined by the statute to mean:
[A]ttempts by an agency authorized by the division 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. [N.J.S.A. 30:4C-15.1(c).]
However, DYFS is not required to provide "reasonable efforts" aimed at family reunification if one of three statutory exceptions applies. N.J.S.A. 30:4C-15.1(d). One of those exceptions is where "[t]he rights of the parent to another of the parent's children have been involuntarily terminated."
Here, the trial court noted that on July 18, 2008, DYFS was exempted from providing further reasonable efforts to reunite B.K. with A.K. when it was determined that N.J.S.A. 30:4C-11.3(c) applied. Despite that exemption, the trial court listed the various reasonable efforts that DYFS had made to reunite A.K. with her family, including consulting B.K. on an appropriate plan, offering B.K. services to remedy her drug addiction, arranging visitation with A.K. for B.K. and the grandmother, conducting psychological and bonding evaluations, and assessing potential relative resources for A.K.
B.K. concedes that DYFS was exempted from the "reasonable efforts" part of the third prong. Instead, B.K. argues that the trial court erred in finding that the second part of the third prong was met because the court failed to consider alternatives to termination of parental rights. First, B.K. argues that, in this case, there was a "glaringly clear alternative - placement with the maternal grandmother," but that DYFS denied her sufficient visitation to form a bond with A.K. In this regard, B.K. criticizes the trial court's failure to address "the inadequate nature" of the visitation her mother had with A.K. Second, she argues that the trial court also erred in failing to consider a Kinship Legal Guardianship ("KLG") arrangement as another alternative to termination of parental rights. We reject both contentions.
Here, there was ample evidence from which the trial court could have concluded that DYFS both properly considered B.K.'s mother as a possible caregiver for A.K. and properly ruled her out based on a credible expert's opinion.
DYFS arranged for B.K.'s mother to have visitation with A.K. For the first few years of A.K.'s life, the grandmother was allowed overnight weekend visits, but, in August 2008, visitation was reduced to bi-weekly supervised visits. Under DYFS' regulations, visits may be made supervised if DYFS "finds a need for supervision." N.J.A.C. 10:122D-1.10(b). In addition, visitation may be reduced if the visit will be harmful to the child. N.J.A.C. 10:122D-1.15(a). Here, DYFS gave the following reasons for the reduction of the grandmother's visitation: (1) A.K. had developed thrush and an ear infection while in her grandmother's care; (2) A.K. had been left in the care of her eldest sibling, who was busy caring for her own child; (3) concerns about the grandmother's ability to care for a child with developmental delay; and (4) the lack of space for A.K. in her grandmother's already-crowded apartment.
In addition, Dr. Singer and DYFS raised numerous other issues with regards to the unsuitability of A.K.'s grandmother as a caregiver: (1) that she has a "substantially below average" IQ, is illiterate, and cannot decipher the labels on prescription bottles, which would limit her ability to work with A.K.'s speech therapists, doctors, and teachers; (2) that she has "difficulty dealing with ambiguous situations" such that she would unable to independently care for a young child with special needs; (3) that she is currently 67 years old and caring for a now 4-year-old child would be increasingly difficult as she ages; and (4) that the grandmother would likely allow inappropriate contact between A.K. and B.K., since she has repeatedly left B.K. alone with her other children in the past.
Thus, the trial court was well within her discretion in finding that DYFS had properly ruled out A.K.'s grandmother as a potential placement for A.K. based on valid reasons set forth by Dr. Singer's expert testimony.
Further, since KLG is inappropriate when adoption is available, as it is here, the trial court was correct in not considering it as an alternative to termination of B.K.'s parental rights.
When adoption of a child is "neither likely nor feasible," the Kinship Act provides for an "alternative, permanent legal arrangement" in the form of a court-ordered kinship legal guardianship. N.J.S.A. 3B:12A-1 (emphasis added). The statute is expressly aimed at addressing the needs of grandparents and other relatives who provide long-term care for a child because the parents are unable to do so and who are unlikely or unwilling to seek termination of parental rights in order to adopt the child. Ibid. Thus, "when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under [the third prong]." I.S., supra, 202 N.J. at 211 (quoting N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004)).
Accordingly, in a termination of parental rights case in which the foster parents want to adopt the child, as is the situation here, KLG is not available and it cannot be argued that the trial court failed to consider KLG as an alternative to termination of parental rights. I.S., supra, 202 N.J. at 211;
P.P., supra, 180 N.J. at 512-13. Here, A.K.'s foster parents expressed their desire to adopt A.K. B.K. also offered to terminate her parental rights so that her mother could adopt A.K. Thus, adoption was available, and KLG was not an appropriate alternative in this case.
Under the fourth prong, DYFS must show that termination of B.K.'s parental rights would not do more harm to A.K. than good. N.J.S.A. 30:4C-15.1(a)(4). Here, DYFS should offer "testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation' of the child's relationship with both the natural parents and the foster parents." N.J. Div. of Youth & Family Sers. v. M.M., 189 N.J. 261, 281 (2007) (quoting In re J.C., supra, 129 N.J. at 19). Under this prong, the child's need for permanency is an important consideration. Ibid. (citing In re K.H.O., supra, 161 N.J. at 357-58). The fourth prong may be satisfied by a showing that the "bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong." In re K.H.O., supra, 161 N.J. at 363.
In this case, the trial judge held that this prong was met because of A.K.'s need for permanency and because of the comparatively stronger bond she has with her foster parents:
Keeping this child in limbo, hoping for some long term reunification plan would be a misapplication of the law. [N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.
Super. 418, 438 (App. Div. 2001).]
Were we waiting for the mother to demonstrate a renewed commitment to sobriety, or were we waiting to revisit the fitness of the maternal grandmother and, then, have to develop a transitional plan, whereby [A.K.] would could [sic] leave her foster parents and return to her grandmother, both are scenarios that are contraindicated . . . .
Here, the Court finds that the disruption of a relationship with her foster parent would cause [A.K.] to suffer greater harm than from the termination of the ties with her natural parents, her natural grandmother and her natural siblings.
This finding is fully supported by the testimony of both Dr. Griffith and Dr. Singer. There was no error by the trial court in finding their testimony more persuasive than that offered by Dr. Figurelli.
The judgment under review is affirmed.
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