January 20, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF Q.K.J. AND T.J.J., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-65-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 14, 2010
Before Judges Graves, Messano and Waugh.
Defendant F.M. appeals from a judgment of guardianship terminating her parental rights to her daughter, Q.K.J., born on June 19, 2007, and her son, T.J.J., born on April 20, 2008. A third child, E.J., who was placed in the custody of the Division of Youth and Family Services (DYFS or the Division) following his birth on March 27, 2009, is not a subject of this appeal. The children's father, T.J., did not appeal from a judgment of guardianship dated October 1, 2009, which was entered after default and a proof hearing.
Defendant presents the following arguments for our consideration:
DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS NECESSARY TO TERMINATE F.M.'S PARENTAL RIGHTS IN ORDER TO PROTECT HER CHILD'S BEST INTERESTS.
F.M. WAS NOT AFFORDED A JUDICIAL DETERMINATION OF WHETHER SHE ABUSED OR NEGLECTED HER CHILD UNDER THE (FN) ABUSE AND NEGLECT ACTION AND THEREFORE DYFS NEVER HAD THE AUTHORITY TO SEEK TERMINATION OF PARENTAL RIGHTS AGAINST F.M. PURSUANT TO N.J.S.A. 30:4C-15(c) BECAUSE DYFS NEVER HAD A LEGAL RIGHT TO "CARE OR CUSTODY."
THE TRIAL COURT IMPROPERLY DETERMINED THAT Q.K.J. AND T.J.J.'S HEALTH AND DEVELOPMENT HAVE BEEN OR WILL BE ENDANGERED BY F.M. AND SHOULD BE REVERSED.
THE TRIAL COURT IMPROPERLY DETERMINED THAT F.M. WAS UNWILLING AND UNABLE TO ELIMINATE THE HARM TO Q.K.J. AND T.J.J.
DYFS DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO REUNITE Q.K.J. AND T.J.J. WITH F.M., NOR DID THE COURT CONSIDER ALTERNATIVES TO TERMINATION.
[DYFS] DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT MORE HARM THAN GOOD WOULD BEFALL Q.K.J. AND T.J.J. IF F.M.'S PARENTAL RIGHTS WERE TERMINATED.
We conclude from our examination of the record and applicable law that the trial court applied the correct legal principles and its factual findings and conclusions are adequately supported by clear and convincing evidence. We therefore affirm with the following comments.
"The right of a parent to raise a child and maintain a relationship with that child, without undue interference by the state, is protected by the Unites States and New Jersey Constitutions." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). Moreover, "[t]he Legislature has declared that '[t]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare.'" K.H.O., supra, 161 N.J. at 347 (second alteration in original) (quoting N.J.S.A. 30:4C-1(a)).
Parental rights are not absolute, however. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). "The State has a basic responsibility . . . to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102 (citing K.H.O., supra, 161 N.J. at 347); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) ("The State has a responsibility to protect the welfare of children and may terminate parental rights if the child is at risk of serious physical or emotional harm.") (citing Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)). Furthermore, the Legislature has declared that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a).
"The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. Under that test, termination is not appropriate unless the Division satisfies each of the following four statutory factors by clear and convincing evidence:
(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).]
These four requirements "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. The considerations involved are extremely fact sensitive and require particularized evidence that addresses the specific circumstances present in each case. Ibid.
Our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "[F]indings by [a] trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. Deference is not appropriate, however, if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
In this case, F.M. became pregnant with her first child, Q.K.J., at the age of seventeen. F.M. had dropped out of school a year and a half before becoming pregnant and resided with B.M., her aunt and legal guardian. At the time of the pregnancy, F.M. was in a relationship with the child's father, T.J., who was twenty-eight years old. T.J. lived in the house immediately behind B.M.'s.
Approximately five months after Q.K.J.'s birth, November 9, 2007, the Paterson Police responded to an incident of domestic violence at B.M.'s house. According to the police report:
[F.M.] . . . related that her boyfriend [T.J.] came home [that] evening and began to argue with her. [F.M.] related that she contact[ed] the police prior to the incident escalating and becoming physical. [F.M.] further related that for the past several days [T.J.] [had] been physically controlling specifically by assaulting her with his hands about the face and mouth causing minor injuries (laceration) to the inside lip area. The victim refused medical treatment at the time since the incident (assault) took place [a] few days ago.
F.M. provided the police with a written statement indicating that T.J. "put his hand on me and bust my lip twice. Today he just continued to argue with me."
The Paterson Police referred the domestic violence incident to the Division and the matter was investigated by Elvia Ortiz (Ortiz) on November 16, 2007. F.M. informed Oritz that T.J. had been on ecstasy and acted "very erratic." In addition, T.J. told Ortiz that he "went to [St.] Joseph's Hospital in October 2007 and was diagnosed with schizophrenia and bipolar disorder." Oritz concluded that T.J.'s unmedicated mental illness was a risk to the family and that the family was in need of services.
Oritz determined that Q.K.J. was not present when the domestic violence occurred, precluding a finding of neglect. However, the Division nonetheless prepared a case plan with recommendations: T.J. was not allowed in B.M.'s home until the Division could further assess his risk to Q.K.J.; T.J. was barred from unsupervised contact with Q.K.J.; and F.M. would ensure Q.K.J.'s safety.
Two months later, in December 2007, both F.M. and T.J. met with Jessica Piedra (Piedra), a DYFS Family Service Specialist. F.M. expressed "concerns with regards to [T.J.'s] behavior." Specifically, F.M. stated that "[T.J.] is saying that he's God and his . . . kingdom was coming." Piedra then spoke to T.J. and reported as follows:
[T.J.] told Worker that he has many influential people in high places, that will take care of him. [T.J.] told Worker that he has friends who are millionaires and they will help him. [T.J.] told Worker that he has a friend called Moses that will help him. . . . Worker then inquired if it [was] Moses from the [B]ible. [T.J.] told Worker it was.
[T.J.] told Worker that he was very important and . . . that he was God. [T.J.] then went to explain that his Kingdom was coming on December 25, 2007.
Piedra was concerned with F.M.'s ability to protect Q.K.J., and she reiterated to F.M. that T.J. was not allowed to return to the home or to leave with the child. Despite this reminder, the Division received a referral alleging that T.J. was staying at B.M.'s home. Upon investigation, a Division worker found T.J. in the residence on December 14, 2007, and F.M. was informed that her non-compliance with the case plan was placing Q.K.J. at risk of removal.
In addition to T.J.'s psychological issues, a background check revealed that T.J. had a criminal history, including four charges involving controlled dangerous substances. Moreover, during an intake screening, T.J. admitted prior use of marijuana, cocaine (powder), crack cocaine, amphetamines/methamphetamines, benzodiazepines, ecstasy, LSD, and PCP.
On January 7, 2008 the Division filed a verified complaint and order to show cause (OTSC), which the court granted. The OTSC placed Q.K.J. under the care and supervision of the Division*fn1 and ordered both parents to engage in domestic violence counseling, to complete psychological evaluations, and to follow all recommendations. The order also required T.J. to complete a psychiatric evaluation, a substance abuse program, and anger management training. In addition, T.J. was restrained from entering the home and having any contact with Q.K.J. unless supervised by the Division.
Eric Kirschner, Ph.D. (Kirschner), conducted the psychological evaluations of F.M. and T.J. on February 14, 2008. Beginning with F.M., Kirschner determined that:
[F.M.] presented as an individual who was dependent on [T.J.,] particularly in terms of financial support.
[F.M.] reported that she is currently pregnant with [T.J.'s second] child and is due to give birth in May 2008. She has only completed school up to the 8th grade and is unemployed at this time. Although she claimed to have attended a GED program, she has never taken the test to earn it. In addition, [F.M.] has virtually no history of ever working before.
[F.M.] acknowledged that [T.J.] had spent time in the home although she was aware that he was not permitted to be there. . . . She minimized the reported incident of domestic violence involving [T.J.]. Moreover, she was unwilling to obtain a restraining order against [T.J.] after he was charged with assaulting her in November 2007. [F.M.] denied having any concerns about [T.J.'s] ability to provide a safe and protective environment for their daughter. Overall, significant concerns exist about [F.M.'s] ability to utilize good judgment thereby posing a heightened risk to her daughter's safety and protection.
Kirschner documented the following findings regarding T.J.:
[T.J.] presented as a poorly groomed individual. He is currently unemployed and has a poor work history. [T.J.] denied experiencing any symptoms associated with mental illness, including psychotic thought process. He also denied ever engaging in any form of domestic violence or physically aggressive behavior towards [F.M.].
[T.J.] lacked considerable insight into his mental illness, in part, as evidenced by his history of non-compliance with psychiatric medications. . . . [T.J.'s] failure to recognize his psychological impairments and his subsequent failure to remain in consistent psychiatric care has likely compromised his ability to provide an adequately safe and nurturing environment with appropriate guidance and judgment at this time, thereby placing his daughter at increased risk for child endangerment. . . .
[T.J.] has a lengthy history of arrests for drug possession and sales dating back to when he was 15 years old. As a result, he estimated that he has been incarcerated for approximately 6 years of his life. . . . [T.J.] appears to have provided an inconsistent account regarding his use of illegal drugs, thereby greatly minimizing the extent and frequency of his use. As a result, questions exist in regard to [T.J.'s] veracity and willingness to respond in a forthright manner.
Kirschner concluded that if "[T.J.] and/or [F.M.] [are] unable or unwilling to comply with the [Division's] recommendations, or should any evidence exist suggesting that their child would be at continued risk in their care, alternative placement options should be explored."
On April 8, 2008, two Division workers traveled to B.M.'s house to meet with F.M. When asked if she knew where T.J. was, F.M. responded that he was at work. However, the workers subsequently discovered T.J. in a bedroom with Q.K.J. Due to the violation of the court order,*fn2 the Division, with the assistance of the Paterson Police, removed Q.K.J. from F.M.'s physical custody.
Q.K.J. was initially placed in foster care because all recommended family members had prior criminal records or were associated with known criminals at the time. She was later placed with "a maternal relative or a close family friend," Ms. V, and her husband, Mr. V. Q.K.J. currently remains in their care.
On April 20, 2008, less than two weeks after Q.K.J. was removed, F.M. gave birth to T.J.J. Within the ensuing week, T.J.J. was removed from F.M.'s and T.J.'s custody via a Dodd hearing,*fn3 and the court granted the Division's OTSC for legal and physical custody, care, and supervision.
At first, F.M. stated that her mother could care for T.J.J. However, a few days later, F.M. "indicated that she no longer wished to have her mother care for [T.J.J.] as [her mother] was planning to move to Florida." As a result, T.J.J. was placed with F.M.'s cousin, N.R. After incidents of domestic violence at N.R.'s residence, T.J.J. was relocated to a non-relative foster parent, Ms. B, where he currently remains.
Following the removal of both Q.K.J. and T.J.J., F.M. was allowed weekly supervised visits with the two children. The visits were scheduled and monitored by Family Connections, which also offered F.M. parenting classes and skills training. In a letter dated February 19, 2009, Family Connections noted the following:
Since [F.M.] has started this program [on May 7, 2008] she has been compliant with services overall. . . . The identified treatment goals for [F.M.] are to learn to utilize skills and techniques to protect and prevent risk of harm/abuse of her children, learn appropriate methods to navigate through the various systems by empowering her to be an advocate for herself and her children. Another treatment goal identified for [F.M.] is to increase nurturing interactions with her children as an independent parent.
In addition to Family Services, the Division provided F.M. with other services to promote reunification with Q.K.J. and T.J.J. On May 7, 2008, F.M. was also scheduled to begin one-on- one domestic violence and therapeutic counseling at Family Intervention Services (FIS). However, on July 28, 2008, the Division received a letter from FIS outlining F.M.'s sporadic attendance:
[F.M.] agreed to come in on 5/7/08 at noon. However, [F.M.] failed to come to that appointment and subsequently did not show up to the next appointment which was scheduled for 5/14/08, showed up 35 [minutes] late for the following appointment scheduled 5/21/08 and failed to show up for the next scheduled appointment for 5/30/08. At this point, clinician contacted her DYFS worker to help her get in touch with [F.M.]. The DYFS worker was able to get in touch with [F.M] and help clinician schedule the next appointment for 6/6/08, which [F.M.] was able to attend at FIS. Since this time, [F.M.] has had a difficult time remaining consistent with her attendance at FIS. She has only attended 3 of her 7 scheduled appointments with this clinician.
Due to her lack of participation, F.M. was unable to achieve her goal of reunification, and she was terminated from FIS on November 26, 2008.
The Division also arranged for F.M. to move into a transitional housing program, known as "Switch." Switch provides "a normalized living environment" where mothers can be reunited with their children, while they receive appropriate services. Unfortunately, F.M. was non-complaint with the program and, on September 18, 2008, she was terminated because she failed to demonstrate a "desire to be a responsible parent."
Towards the end of 2008, the Division referred F.M. to Full Circle Counseling, LLC (Full Circle), to address domestic violence issues. She began the sessions on December 23, 2008. Although her participation was inconsistent at times, she remained enrolled in the program as of March 17, 2010, when the trial court rendered its termination decision.
In addition to services, the Division paid for F.M. to attend training as a home health aide, and she obtained her license in August or September of 2009. F.M. subsequently worked with a client for approximately a month-and-a-half. According to F.M., that employment ended because she was given "a starter case [where] the guy had dementia, and he thought I wasn't doing a good job. He felt I was mopping the floors without water and he told them I wasn't doing enough." At the time of trial, F.M. was unemployed.
In December 2008, F.M. told the Division that she wasn't seeing T.J. "that much." However, on January 16, 2009, a DYFS permanency worker, Nancy Paulino (Paulino), "saw a sign on [F.M.'s] mailbox that said [T.J.] and [F.M.]." F.M. later testified that she put the sign up at T.J.'s request, so she "could receive a package for him." In March of 2009, Paulino "went to [F.M.'s] house and witnessed her getting out of a taxi with a man [believed] to be [T.J.]. They went into the house together." Then, on October 5, 2009, Paulino "observe[d] [T.J.] and [F.M.] walking together with similar shopping bags in the direction of his apartment." According to Paulino, both T.J. and F.M entered his apartment and after five minutes of waiting, she did not witness F.M. exit.
In November 2008, F.M. moved from B.M.'s house into her own apartment, which cost $900 per month, plus utilities. Although F.M. denied that T.J. was living with her--even after Paulino observed men's clothing and toiletries in her apartment--F.M. admitted that T.J. gave her "about $700" each month to help her pay the rent. However, in July 2009, F.M. resumed living with B.M. because T.J. could no longer provide financial support.
A permanency hearing was held on March 19, 2009, and the court approved the Division's plan of termination of parental rights for Q.K.J. and T.J.J. with a concurrent plan of reunification with F.M. The court noted that T.J. had failed to comply with any services to address his mental health and substance abuse issues, and that F.M. had just started to comply with counseling at Full Circle.
Default was entered against T.J. after he failed to attend case management conferences on June 3, 2009, and September 10, 2009. On October 1, 2009, the court terminated T.J.'s parental rights to Q.K.J. and T.J.J., and he did not appeal.
On October 28, 2009, Donna LoBiondo, Ph.D. (LoBiondo), conducted a court ordered psychological evaluation of F.M. LoBiondo noted that "[F.M.] didn't identify that she had done anything that caused [Q.K.J. and T.J.J.] to be removed." Additionally, F.M. told LoBiondo "that as long as [T.J.] was on medication for his mental problems and completed a drug program, she would allow him to have contact with her," notwithstanding the court order. LoBiondo summarized her concerns as follows:
1.) [F.M.] minimized her partner's drug use and violence issues that led to the removal of her children;
2.) It is unclear from available therapy or other service notes whether her parental judgment has improved since she allowed the children's father to see them against court orders;
3.) It is also unclear whether she is still involved with [T.J.]; 4.) While [F.M.] claims not to be, evidence to the contrary was found earlier this year . . . ;
5.) [F.M.] has not completed parenting classes or domestic violence training;
6.) [F.M.] is not gainfully employed;
7.) [F.M.] does not have an independent living situation suitable for herself and her children, and her current home with [B.M.] is too small for the children.
LoBiondo also conducted independent bonding analyses for Q.K.J. and T.J.J. LoBiondo found that although "the interactions between [Q.K.J.] and [F.M.] were appropriate . . . the data does not suggest that [Q.K.J.] views her as a parental figure":
During observations of [Q.K.J.] with [F.M.] and foster parents Mr. V. and Ms. V., she demonstrated a stronger attachment to both foster parents than to [F.M.]. In their presence her mood was consistently brighter and more energetic. . . . [Q.K.J.] showed distress upon separation from [F.M.] but less intense distress than with her foster parents. She showed happiness at reunification with [F.M.], but chose Mr. V. when faced with a choice between returning to him or to natural mother.
Within a reasonable degree of psychological certainty, termination of [F.M.'s] parental rights to [Q.K.J.] will not result in enduring psychological harm to the child. Termination of her rights will do more good than harm as [Q.K.J.'s] need for permanency and safety outweighs any harm that might result from termination. It is therefore advised that [F.M.'s] rights to [Q.K.J.] be terminated in order to free her for adoption into a supportive environment. This will address her need for permanency and safety as well as her development, psychosocial, academic, and medical needs. Regarding T.J.J., LoBiondo found:
During observations of [T.J.J.] with both [F.M.] and foster mother Ms. B, he demonstrated a strong attachment to Ms. B. In her presence his mood was consistently brighter and more energetic, he sought proximity to her, showed a drive to communicate through touch and eye contact, showed high distress at separation from her, and recompensated in an appropriate amount of time. [T.J.J.] demonstrated some familiarity with his natural mother [F.M.] but no parental attachment. Although he was able to become more comfortable with [F.M.] as the session continued, [T.J.J.] did not seek proximity, demonstrated constricted exploration patterns, and had no reaction to her departure.
Ultimately, LoBiondo reached the same conclusion with T.J.J. as Q.K.J: "Within a reasonable degree of medical certainty, termination of [F.M.'s] rights to [T.J.J.] . . . will do more good than harm."
Trial was held on January 13, 14, 20, and February 18, 2010. Although F.M. testified, she did not present any expert testimony, and the court did not find her testimony credible. For example, even though F.M. admitted to the police that T.J. had struck her in November 2007, her trial testimony was as follows:
[THE COURT]: Do you remember the incident when the police came and testimony was heard that you had a cut in your mouth? Do you remember that?
[THE COURT]: Did [T.J.] cause that injury to your mouth?
[THE COURT]: He didn't have anything to do with it?
[F.M.]: No. I didn't have an injury in my mouth.
[THE COURT]: You didn't have a cut in your mouth --
[THE COURT]: -- or on the outside of your mouth?
[F.M.]: No. I did give the testimony, though, yes.
[THE COURT]: But you did say at the time that you did?
[THE COURT]: But it was not true?
[F.M.]: No. The reason that I gave the testimony was because I was told he needed medical help and they said that's the only way he'll get it.
In addition, the court noted that on April 8, 2008, when Q.K.J. was removed from F.M.'s physical custody, F.M. advised the Division caseworkers that T.J. was at work when he was actually in her bedroom with Q.K.J. Furthermore, when confronted with extensive documentary evidence about her non-compliance with the Switch program, F.M. responded that she "really [didn't] recall" her attendance record.
The first prong of the statutory test requires a court to analyze whether "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "The harm shown under the first prong must be one that threatens the child's health and will likely have continuing deleterious effects on the child." In re Guardianship K.H.O., supra, 161 N.J. at 352.
As our Supreme Court has recognized, "[a] parent's withdrawal of solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship D.M.H., 161 N.J. 365, 379 (1999). Moreover, "[c]courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." Id. at 383.
In the present matter, F.M.'s unwillingness to comply with the court-ordered restraints against T.J., an admitted drug abuser with significant psychiatric problems, led to the removal of her children. Nevertheless, despite T.J.'s unwillingness to attend psychiatric and substance abuse counseling, F.M. maintained her relationship with him and was emotionally and financially dependent on him. Moreover, the court found that "[F.M.] does not hesitate to falsify when necessary in order to protect [T.J.] or to resort to an inability to make a recollection if it adversely effects [T.J.]." Thus, there is substantial credible evidence to support the trial court's conclusion that "if the children are returned to [F.M.] she will take up residence with the children and [T.J.]" and place them in danger.
The second prong of the termination analysis requires the Division to prove that "[t]he 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." N.J.S.A. 30:4C-15.1(a)(2). Furthermore, "[s]uch 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." Id.
With regard to the second prong, the court incorporated its initial findings. See D.M.H., supra, 161 N.J. at 379 (stating that "N.J.S.A. 30:4C-15.1(a)(1) and (2) are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child"). Additionally, the court noted that F.M. has not obtained her GED and has been unable to maintain employment; F.M. was forced to return to B.M.'s residence when T.J. could no longer provide her with financial support; and, as LoBiondo noted, B.M.'s residence was "too small for the children." The court also relied on LoBiondo's unrebutted testimony:
The second part of prong two has also been provided by clear and convincing evidence, namely that the delay in permanent placement will add to the harm which includes evidence that separation from the foster parents would cause serious and enduring emotional and psychological harm to the children.
It's axiomatic that the children need permanency and that continued delay will add . . . to the harm that has been caused by removal. In this regard Dr. LoBiondo testified that the children will suffer serious and enduring harm if separated from the foster parents, and that [F.M.] did not have the capacity to ameliorate that harm.
Dr. LoBiondo's testimony is unrebutted so there was no expert testimony produced by [F.M.] addressing this issues. . . . I find Dr. LoBiondo to be credible, and her testimony to be consistent with the facts in this regard.
The third prong of the statutory test requires a finding that "[t]he [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). "DYFS's efforts to provide services 'is not measured by their success. . . . These efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case. Consistent efforts to maintain and support the parent-child bond are central to the court's determination.'" N.J. Div. of Youth and Family Services v. A.R., 405 N.J. Super. 418, 441 (App. Div. 2009) (quoting D.M.H., supra, 161 N.J. at 393).
The trial court found that the services offered to F.M. were "more than reasonable." As the court noted, F.M. was referred to FIS and Full Circle for one-on-one domestic violence counseling to mitigate the chances that F.M. would again place her children in a harmful environment. The Division also arranged for F.M. to attend Switch, a transitional housing program. There, the Division's goal was to reunify F.M. with her children after "she had demonstrated her commitment to the program." In addition, the court found that the Division provided parenting classes at Family Connections so that F.M. would learn "skills and techniques to protect and prevent risk of harm/abuse of her children . . . [and] to increase nurturing interactions with her children as an independent parent."
Moreover, the court found that the Division had considered alternatives to the termination of F.M.'s parental rights:
In terms of considering alternatives to termination of parental rights, the Division saw and explored the relative resources provided by [F.M. and T.J.]. [Q.K.J.] has ultimately been placed with Ms. [V], who . was either a maternal relative or close friend . . . . The child has been doing well, and Ms. [V] and her husband are committed to the child and willing to adopt.
As previously stated, [F.M.] initially proposed her mother as a resource for [T.J.J.]. However, . . . [t]here was testimony that the mother was seeking to relocate to Florida, and there was also testimony indicating that her mother had not qualified as a resource parent because of a history with the Division.
The Division initially placed [T.J.J.] with [N.R.] a family relative that had been referred by [F.M. and T.J.] However, the placement was unsuccessful. . . . [T]here were a number of efforts by the Division to continue the child with [N.R.] . . . . Subsequently there was a problem with what occurred in the household, and [T.J.J.] had to be removed and placed in the current foster home . Consequently there were no other alternatives available for the Court to consider other than to proceed to termination of parental rights.
The fourth and final prong addresses "whether, after considering and balancing the two relationships, 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." K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy" the fourth prong. Id. at 363. "Such proof should include the 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 the foster parent." In re Guardianship of J.C., supra, 129 N.J. at 19.
After a comprehensive comparison of each child's interaction with F.M. and his or her foster parent(s), LoBiondo concluded that termination of parental rights "will do more good than harm" for both Q.K.J. and T.J.J. The court placed great weight on LoBiondo's conclusions:
Dr. LoBiondo . . . conducted bonding evaluations between [Q.K.J.] and the foster parents, and [Q.K.J.] and the defendant, and found the child to be more securely attached to her foster parents than [F.M.]. That in fact they have become her psychological parent and removal from the foster parents would cause serious and enduring harm, which [F.M.] could not ameliorate.
Dr. LoBiondo also found that termination of parental rights of defendant will not cause serious and enduring harm to the child, although there would be some harm. It could be . . . mitigated by the foster parents. It would not be as I stated substantial, nor would it be enduring. Clearly the termination of parental rights of . . . [F.M.] with respect to [Q.K.J.] would not do more harm than good.
As indicated also in [LoBiondo's testimony] the Court finds that [Q.K.J.] has thrived with the foster parents, and that it has been indicated that these foster parents are ready and willing to adopt the child.
Dr. LoBiondo also evaluated [T.J.J.] with the foster parent and with [F.M.] regarding bonding and attachment.
Dr. LoBiondo found that the foster parent has become the psychological parent to the child and that it would be in the child's best interest as defined by the statute to remain with the foster parent. Dr. LoBiondo found that the child would suffer serious and enduring harm if removed from the care of the foster parent and that [F.M.] would not be able to mitigate that harm, and that . . . the termination of the parental rights of [F.M.] to [T.J.J.] would cause minimal harm which could be remediated by the foster parents.
We are satisfied from our independent review of the entire record that the trial court's findings and conclusions are adequately supported by clear and convincing evidence, and that the matter was correctly decided. Accordingly, the judgment terminating F.M.'s parental rights to Q.K.J. and T.J.J. is affirmed substantially for the reasons stated by Judge George E. Sabbath in his oral decision on March 17, 2010.