January 25, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
M.S., DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF A.R.S-R. AND A.C.S--R., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-163-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2010
Before Judges Rodriguez, Miniman and LeWinn.
M.S. is the birth mother of three children. D, a twelve-year-old girl, is in the permanent custody of her maternal grandparents pursuant to a voluntary surrender. D is not the subject of this appeal. M.S. appeals the termination of her parental rights to her five-year-old daughter, A.R.S-R. (A.R.), and her four-year-old son, A.C.S-R. (A.C.). We affirm.
The New Jersey Division of Youth & Family Services (DYFS) sought termination of M.S.'s parental rights. Following a hearing, Judge Margaret Hayden terminated M.S.'s parental rights; accepted the biological father's voluntary surrender; and granted guardianship of the children to DYFS.
In January 1999, a hospital social worker notified DYFS that M.S. had just given birth to D, who tested positive for opiates. M.S. admitted to consuming pain medications prescribed for another person, and DYFS made a finding of neglect. By July 7, 1999, M.S.'s parents had obtained custody of D. DYFS was involved with M.S. again when she appeared at a hospital in 2004, twenty-weeks pregnant and suicidal. She tested positive for opiates and cocaine. Four months later, DYFS was notified that M.S., now eight months pregnant, had again tested positive for cocaine and opiates. On February 9, 2005, M.S. gave birth to a baby, A.R., who tested positive for cocaine, opiates and hepatitis C. DYFS immediately obtained custody of A.R.
Shortly after A.R.'s birth, M.S. enrolled in an intensive inpatient treatment center, Straight and Narrow, with DYFS's assistance. M.S. successfully completed the Straight and Narrow program; entered a transitional home; and was reunited with her children. While at Straight and Narrow, M.S. gave birth to her third child, A.C., on August 26, 2006. Preparing for her transition to Section 8 housing, DYFS provided M.S. with moving funds, diapers and a home health aide for her newborn, A.C. However, only three months after this transition, DYFS was notified that M.S. appeared to be using heroin again.
Although M.S. tested negative for narcotics, DYFS kept the case open. A DYFS caseworker visited M.S.'s residence on February 28, 2007, and no one answered the door. Hearing children inside, the caseworker summoned the authorities to force the door open. She found six-month-old A.C., in an "extremely dirty diaper," and two-year-old A.R. in a bed. M.S. was not present, and there was a crack pipe in the apartment. DYFS immediately removed the children, and placed them with M.S.'s parents.
On June 29, 2007, M.S.'s parents obtained legal custody of D and moved to Florida. They transferred A.C. and A.R. to their paternal aunt, V.R. After M.S.'s second stay at Straight and Narrow, DYFS reunited M.S. with A.C. and A.R.
Before leaving the program, Dr. Donna LoBiondo conducted a psychological evaluation of M.S. In Dr. LoBiondo's opinion "M.S.'s most glaring obstacle to safe and effective parenting is her drug addiction," which "resulted in considerable instability and change of caretakers for her children." Dr. Vivian Shnaidman conducted another psychiatric evaluation on December 10, 2007. She identified M.S.'s "significant substance abuse" problems as preventing appropriate parenting decisions. Without a structured setting, M.S.'s "past relapses and episodes of poor judgment" demonstrated that "at some point" she would "return to abusing drugs." Consequently, M.S.'s success largely depended on "her willingness to remain substance-free."
M.S. later transferred to Choices, an intensive outpatient program. After Choices discharged M.S. on February 7, 2008 for non-compliance, she moved into a "transitional housing program," at Amity Park.
In March of 2008, M.S. gave custody of A.R. and A.C. to V.R. because she wanted to surrender for outstanding warrants. Despite the warrants, M.S. was not incarcerated. Nevertheless, M.S. refused to take the children back. The children have remained in V.R.'s care since.
M.S. tested positive for marijuana nine days after placing the children with V.R. A month later, M.S. reported to Amity Park that she was being physically assaulted by her boyfriend, W.M., whom she had allowed into her apartment against regulations. During this incident, Amity Park officials found that M.S. had damaged her apartment and possessed liquor. Amity Park terminated her for these violations on April 30, 2008. M.S. obtained a temporary restraining order against W.M. on June 1, 2008. Nevertheless, the two continued their relationship, appearing together five months later to apply for temporary assistance.
In July of 2008, DYFS referred M.S. to outpatient treatment. After initially refusing to attend, M.S. agreed to an intake appointment. The program denied admission because M.S. misrepresented her history of drug use.
During this period, M.S. had visitations with the children at the Adoption House. Adoption House terminated these visits after M.S. missed three consecutive visits. During M.S.'s most recent evaluation with Dr. Shnaidman on August 6, 2008, the doctor recommended that DYFS "identify appropriate family members who can commit to long-term involvement with [M.S.] and her children." In October 2009, during the pendency of this termination proceeding, M.S. moved to Florida without her children.
On appeal, M.S. contends that:
THE TRIAL COURT'S DENIAL OF APPELLANT'S RENEWED APPLICATION FOR DYFS TO PAY FOR HER TRANSPORTATION FROM FLORIDA TO ATTEND THE TRIAL PROCEEDINGS VIOLATED HER FUNDAMENTAL DUE PROCESS RIGHT TO A FAIR TRIAL.
M.S. contends that conducting the trial without her presence denied her due process rights as elucidated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976). We disagree.
Judge Hayden denied two of M.S.'s requests for DYFS to pay for her transportation to New Jersey because M.S. had not substantiated her living arrangements and rehabilitation or demonstrated the necessary "extraordinary circumstances." Instead, the judge explained that M.S. had simply failed to prepare or cooperate in any way for trial. If, as M.S. argued, she was sober, employed and living with her parents, her failure to save the money to pay for her transportation was "really not an extraordinary reason."
We review the constitutional sufficiency of trial procedures pursuant to an abuse of discretion standard. N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 468 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004). To the extent that such a decision misapprehends the relevant law, however, no deference is appropriate. Manalapan Realty v. Twp. of Manalapan, 140 N.J. 366, 378 (1995).
The Fourteenth Amendment of the United States Constitution provides in §1 that no state shall "deprive any person of life, liberty, or property, without due process of law." The fundamental tenet of due process is that the State must afford parties "notice and an opportunity to be heard." In re Registrant, C.A., 146 N.J. 71, 94 (1996). Because there are no bright-line rules to judge the constitutionality of a disputed procedure, the inquiry should focus on the underlying factual scenario. M.Y.J.P., supra, 360 N.J. Super. at 464-65.
To guide such an analysis, the United States Supreme Court instructed courts to weigh the following factors:
 the private interest that will be affected by the official action;
 the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally,
 the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.
[Mathews, supra, 424 U.S. at 335, 96 S. Ct. at 903, 47 L. Ed. 2d at 33.]
This test is also appropriate to analyze DYFS guardianship proceedings. M.Y.J.P., supra, 360 N.J. Super. at 465-66.
Regarding the first Mathews factor, it is undisputed that parents have a fundamental liberty interest in the care, custody and management of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). The third Mathews factor, or the State's interest in parental termination cases, is similarly well-settled:
[W]e recognize two strong concerns on the part of the State: that the parens patriae responsibility to preserve and promote the welfare of the child must be seen as including the child's important interests in promptness, permanency and competent parenting; and the policy objective, based on fiscal and administrative considerations, to promote efficient and effective adjudication and reduce the cost and burden of the proceedings. [M.Y.J.P., 360 N.J. Super. at 470; K.H.O., supra, 16 N.J. at 347.]
Because these two compelling interests inexorably collide in parental termination cases, the second Mathews factor is often determinative.
Pursuant to that factor, we should assess whether the process the State afforded was adequate to protect the party's interest. In re Allegations of Sexual Abuse at E. Park High Sch., 314 N.J. Super. 149, 164 (App. Div. 1998). There, DYFS conducted a hearing to determine whether sexual abuse allegations against a teacher were substantiated. Id. at 164-65. The teacher was permitted to submit a sworn statement, but could not attend. Id. at 164. We found that this procedure did not adequately protect the teacher's interests because the accused was not able to attend or call witnesses, and an interested DYFS employee presided at the hearing. Ibid.
Attendance, however, is not the sine qua non of procedural due process. For example, in M.Y.J.P., the defendant mother was in Haiti and unable to attend trial. 360 N.J. Super. at 436. The judge provided alternative procedures: the defendant would participate by phone; would be granted a brief adjournment to confer with counsel after each witness's testimony; and would have the assistance of a translator. Id. at 437. On appeal, the defendant argued the trial violated her procedural due process rights. We affirmed, explaining that "a parent who is . . . prevented from attending a termination trial can be afforded due process where the parent receives notice, is represented by counsel, and is given an opportunity to testify by telephone or deposition." Id. at 468, 472. Without evidence that "cross-examination was adversely affected," by the appellant's absence, the procedure was constitutionally sound. Id. at 469.
Here, M.S. had ample notice and testified by phone. Further, her counsel conducted a thorough cross-examination of the only witness against her. Although M.S.'s phone briefly disconnected during the direct examination of DYFS caseworker Harriet Johnson, M.S. was able to reconnect immediately.
The record does not support M.S.'s contention that her absence prejudiced her right to confer with counsel about Johnson's testimony. After M.S. heard Johnson's detailed testimony concerning M.S.'s substance abuse and neglect, M.S. confirmed that the testimony "was pretty clear" and that "everything was true." Given M.S.'s corroboration of the evidence against her, it is unlikely that her presence in the courtroom would have assisted her in any material way.
M.S. also contends:
THE TRIAL COURT'S FINDINGS WERE INCOMPLETE AND INADEQUATE TO SUSTAIN A JUDGMENT TERMINATING APPELLANT'S PARENTAL RIGHTS BY CLEAR AND CONVINCING EVIDENCE AS REQUIRED BY N.J.S.A. 30:4C-15 and 30:4C-15.1.
THE TRIAL COURT ERRED IN FINDING THAT DYFS DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT THE APPELLANT WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING THE CHILD OR IS UNABLE TO OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILD AND THE DELAY OF PERMANENT PLACEMENT WILL ADD TO THE HARM UNDER THE SECOND PRONG.
These are essentially challenges to the judge's findings of fact, and our review is therefore very limited. Findings supported by the proofs are binding on us. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).
DYFS may petition to terminate parental rights when it is in "the best interests of [any] child." N.J.S.A. 30:4C-15.1(a). The Legislature codified a judicial framework to guide courts in determining the best interests of a child:
(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 or permanent placement will add to the harm. . . . ;
(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) (codifying N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-05 (1986)).]
These factors commonly overlap and are "extremely fact sensitive." K.H.O., supra, 161 N.J. at 348. DYFS must prove that termination is appropriate with clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 435 (2001), certif. denied, 171 N.J. 44 (2002).
M.S. cites N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 129-34 (App. Div. 2010), for the proposition that medical records introduced as business records pursuant to N.J.R.E. 803(c)(6) must be supported by expert testimony. Therefore, M.S. argues that the admission of her psychological evaluations without supporting testimony of the authors was improper. We disagree.
To preserve an issue for review, a party must specifically object "to the action taken and [state] the grounds therefor."
R. 1:7-2. Because M.S. did not object, we review for plain error. R. 2:1-2.
Rule 5:12-4(d) permits DYFS to "submit into evidence, pursuant to N.J.R.E. 803(c)(6) . . . reports by staff personnel or professional consultants . . . as prima facie evidence . . . ." Pursuant to N.J.R.E. 803(c)(6), business records are exempted from the ban on hearsay, N.J.R.E. 802, where the proponent can demonstrate that the record was (1) "made in the regular course of business"; (2) "prepared within a short time of the act, condition or event being described"; and (3) the "source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence." State v. Matulewicz, 101 N.J. 27, 29 (1985).
This case does not turn on the application of these factors, but on two recent decisions. In N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 332 (2010), DYFS sought to terminate the defendant's parental rights after a doctor reported abuse. Id. at 332, 335. At trial, the judge admitted the doctor's intake and screening forms as business records without the doctor's testimony. Id. at 336-37. The defendant did not object, but argued on appeal that the admission of these documents was plain error and violated his right to confrontation under the New Jersey and United States Constitutions. Id. at 338-39.
The Supreme Court validated the evidence on the doctrine of invited error. Id. at 342. By consenting to the introduction of the records, the defendant "deprived the trial court of the necessity to make a ruling based on the arguments presented by both sides." Id. at 341. Therefore, DYFS was denied the opportunity to take "steps to satisfy any evidentiary requirements needed for the admission of the documents or present a witness or witnesses in place of the documents." Ibid. Given defendant's time to formulate an objection prior to trial, reversal would be "unfair." Id. at 342.
Similarly, in B.M., the appellant argued plain error in the admission of medical records as business records without supporting testimony. 413 N.J. Super. at 124. There, DYFS sought to terminate the defendants' parental rights because their baby was born addicted to cocaine. Id. at 123-24. DYFS introduced a report from a doctor who found that the baby also suffered from fetal alcohol syndrome. Id. at 124. The judge relied heavily on the report, despite noting that the defendants and the court had not had the opportunity to review the report prior to trial. Id. at 126.
We found plain error in the admission of the report based on due process principles. Because the judge had not asked the parties for objections and treated the report as admitted into evidence before formally admitting it, the case was distinguishable from M.C. III. B.M., supra, 413 N.J. Super. at 128-29. Most importantly, the "report was not simply one additional piece of evidence in support of DYFS' case against appellants, but rather a document that introduced a new charge of abuse[, fetal alcohol syndrome], without notice before trial, thereby depriving appellants of due process of law." Id. at 129.
We also explained that R. 5:12-4(d) does not relax the standards for the admissibility of business records pursuant to N.J.R.E. 803(c)(6). B.M., supra, 413 N.J. Super. at 129-132.
Therefore, to admit the report without any foundation establishing the elements of N.J.R.E. 803(c)(6) was plain error. B.M., supra, at 129. In dicta, we also noted that medical reports are "generally inadmissible under th[e 803(c)(6)] test because of the complexity of the analysis involved in arriving at the opinion and the consequent need for the other party to have an opportunity to cross-examine the expert." Id. at 130. M.S. relies on this statement.
Much like M.C. III and B.M., it is undisputed here that the authors of the medical reports did not testify; M.S. did not object to the reports; and the reports were a critical portion of DYFS's case. Contrary to M.S.'s arguments, however, B.M. does not hold that all medical records introduced pursuant to N.J.R.E. 803(c)(6) must be supported by expert testimony. Instead, B.M. simply held that R. 5:12-4(d) does not exempt DYFS from establishing N.J.R.E. 803(c)(6) factors. Here, M.S. does not allege that DYFS failed to meet that standard. Therefore, the situation here is more analogous to M.C. III. By failing to object, M.S. prevented DYFS from taking "steps to satisfy any evidentiary requirements needed for the admission of the documents or present[ing] a witness or witnesses in place of the documents." 201 N.J. at 341. Consequently, the doctrine of invited error precludes reversal.
As a final note, the doctrine of invited error is inappropriate where its application would "cause a fundamental miscarriage of justice." Brett v. Great Am. Recreation 144 N.J. 479, 508 (1996). Although M.S. generally alleges that the reports conflict, there is no specific challenge to the validity of the reports. Further, the judge did not rely solely on this evidence. Instead, the judge relied heavily on the testimony about M.S.'s addiction, rehabilitation, relapse and general instability, which M.S. explicitly confirmed. Therefore, the admission of these evaluations was no miscarriage of justice.
M.S. also argues that the judge improperly relied on her failed 2008 drug screening and current living situation in finding that the second prong of N.J.S.A. 30:4C-15.1(a) weighed in favor of termination. We disagree.
Judge Hayden noted that although M.S. had stabilized in structured settings, she relapsed shortly after leaving. Thus, M.S. had not demonstrated the ability to remain stable outside of intensive drug treatment programs. Further, M.S. was "very resistant" to the transitional housing programs, and had been refused outpatient treatment due to her dishonesty during intake. M.S.'s failure to attend court-ordered drug screenings or to obtain any treatment in Florida, combined with her lack of permanent housing only underscored her "palpable" instability and led to a "severe likelihood of relapse."
The second prong focuses upon whether 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 . . . ." N.J.S.A. 30:4C-15.1(a)(2). Courts should not resort to analysis of the social or economic status of the parent, but should "only determine whether it is reasonably foreseeable that the parents [will] cease to inflict harm upon the children entrusted to their care." A.W., supra, 103 N.J. at 607. Parents' narcotics addiction, failed compliance with rehabilitation programs and lack of stable housing will satisfy this standard. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512 (2004); K.H.O., supra, 161 N.J. at 353 ("[T]he second prong may be met by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse . . . ."); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104-05 (2008) (child was in foster care for long periods as a consequence of the parents' "intractable drug addiction"); N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 206 (App. Div.), certif. denied, 192 N.J. 293 (2007) (mother had significant substance abuse problems, a history of relapses and was "uncooperative" with substance evaluations).
Here, M.S. has a long and unfortunate history of substance abuse. Although M.S. has successfully rehabilitated in the past, she has been unable to continue this success outside of controlled environments. As Dr. LoBiondo noted, M.S.'s "most glaring obstacle to safe and effective parenting is her drug addiction." Dr. Shnaidman echoed this concern, noting that M.S. would "likely . . . return to abusing drugs." M.S.'s failure to appear for court-ordered drug evaluations or attend any rehabilitation programs in Florida magnifies this risk of relapse, and supports Judge Hayden's findings.
M.S. also argues that there was insufficient evidence to meet the third prong of N.J.S.A. 30:4C-15.1(a). M.S. argues that DYFS did not provide adequate services to assist her with her "primary" problem, namely "her struggle with chemical dependency." Choices recommended in 2008 that M.S. attend additional intensive outpatient treatment. M.S. argues that because DYFS did not ensure that she received this treatment, DYFS failed to provide adequate services. We disagree.
Judge Hayden found that DYFS provided substance abuse treatment, transitional housing, train passes and bus cards for visitation, and parenting and domestic violence counseling. In addition, DYFS provided a parent aide for two weeks, moving costs, diapers for two months, and psychological, psychiatric and neurological evaluations. Thus, DYFS had made adequate and reasonable attempts to "stabilize" M.S. so that she could "provide a safe and stable home."
Pursuant to N.J.S.A. 30:4C-15.1(a)(3), DYFS must make "reasonable efforts to provide services to help the parent correct the circumstance which led to the child's placement . . . ." K.H.O., supra, 161 N.J. at 354. In K.H.O., DYFS provided the defendant repeated access to rehabilitation programs after placing her baby in foster care after birth. Id. at 344. Nevertheless, the defendant missed several evaluations, failed numerous screenings and relapsed. Ibid. The Court found that DYFS had made sufficient reasonable efforts. Id. at 354. Indeed, where a failure to remedy the harm is due to the parent's "refus[al] to engage in therapy or other services," it is not appropriate to return the child to the parent's care. A.W., supra, 103 N.J. at 610.
Here, DYFS has provided psychological evaluations, parent counseling, rehabilitation treatment, transitional housing, and individual therapy. Further, M.S. ignored DYFS's referrals to outpatient rehabilitation programs and has not obtained substance abuse treatment in Florida. We cannot fault DYFS for M.S.'s decision not to accept the help that DYFS made available. "Although parents always can argue that DYFS should have done more," there is ample evidence that DYFS provided adequate services for M.S. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 267, 286 (2007).
M.S. also argues that DYFS did not prove the third prong of N.J.S.A. 30:4C-15.1(a)(3) because they did not adequately explore alternatives to terminating M.S.'s parental rights. Instead, M.S. argues that DYFS's "misplaced concern with achieving adoption" prevented consideration of placing the children with her parents, and "thwarted the important goal of family reunification." We disagree.
Although DYFS must consider alternatives to adoption, this consideration requires the existence of relatives of the parent who are willing to "provide care until the parents can resume custody." A.W., supra, 103 N.J. at 609; N.J.S.A. 30:4C-15.1(a)(3). Where such a relative is willing to provide care, "termination is both unnecessary and unwise unless the relative wishes to adopt the child . . . ." Ibid. (emphasis added). Thus, termination is appropriate where the children are in the care of a relative who wishes to adopt the children.
Here, V.R. wishes to adopt her nephew and niece, who have been in her care since March 2008. Further, M.S.'s contention that her parents wanted to care for the children misstates the record. The document to which M.S. cites reads as follows:
The maternal grandparents have expressed that they want to be considered as a resource for the children. [They] have recently relocated to New Jersey from Florida and believe that they may remain in New Jersey for six months (although they are unsure on their exact length of stay). [Another caseworker] advised that she is in the process of submitting background checks on [the maternal grandparents because] they are interested in supervising visitation . [with] . . . M.S.
Viewed in context, M.S.'s parents did not volunteer to accept full custody of the children. Indeed, when DYFS removed the children from M.S. in 2007, M.S.'s parents placed A.R. and A.C. with V.R. Additionally, V.R.'s proposed adoption achieves a measure of family reunification. Thus, DYFS's consideration of alternatives to termination was reasonable.
Lastly, M.S. contends that DYFS did not satisfy the fourth prong because there was no bonding evaluation between M.S. and her children. Although conceding that this is attributable to her absence from the jurisdiction, M.S. again argues that DYFS should have paid for her transportation costs. Also, M.S. argues that Dr. Singer's bonding evaluation of V.R. was inadmissible because the doctor did not testify.*fn1 We disagree.
Judge Hayden analyzed the fourth prong of N.J.S.A. 30:4C-15.1(a)(4) by reference to Dr. Singer's bonding evaluation. Although M.S. failed to attend both bonding evaluations, the judge found that V.R.'s bonding evaluation and the testimony evidenced a very close relationship between her and the children.
M.S.'s relationship with the children, to the contrary, was not strong. She failed to attend visitation with her children because the children's crying upset her. The judge found that this demonstrated that M.S. was "putting [her] needs . . . over the needs of the children." Further, M.S. admitted that she could not currently care for the children and has been unable to get "herself together . . . since 1999 when the first child was born." Without any "predictable time when [M.S.] will be stable," the children's need for "permanency and stability" greatly outweighed any harm that may result from parental termination.
The last prong focuses on 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 permanent disruption of her relationship with her foster parents." In re Guardianship of J.N.H., 172 N.J. 440, 478 (2002); N.J.S.A. 30:4C-15.1(a)(4). Such an inquiry should be undertaken with the understanding that a "'child deeply needs association with a nurturing adult' and that 'permanence in itself is an important part of that nurture.'" E.P., supra, 196 N.J. at 108 (quoting A.W., supra, 103 N.J. at 610). It is well-settled that where a parent has exposed a child to . . . abuse or neglect and has been unable to remediate the danger . . . , and . . . the child has bonded with foster parents who have provided a nurturing and safe home, . . . termination of parental rights likely will not do more harm than good. [E.P., supra, 196 N.J. at 108.]
Where DYFS does not allege unfitness, bonding evaluations of the biological parents are absolutely necessary. See In re Guardianship of J.C., 129 N.J. 1, 18 (1992). Where the termination proceeding involves allegations of unfitness, a bonding evaluation is helpful, but not strictly required. Ibid.
Here, DYFS alleged abuse and neglect. Consequently, a bonding evaluation between M.S. and the children was not required. Further, the lack of such an evaluation is attributable to M.S., who simply chose not to attend. The judge even scheduled a bonding evaluation in February based on assurances from M.S. that she would be in New Jersey at that time. M.S. never attended this evaluation. Given this abject failure to participate, M.S. cannot argue now that the absence of those evaluations precludes a finding in favor of DYFS.
M.S.'s drug addiction has eviscerated any meaningful relationship with her children. In sharp distinction, the children had developed a "very positive relationship" with V.R. in the two years that they have lived with her. Ample evidence therefore supports the judge's finding that the "merely speculative" harm of parental termination was outweighed by the good that would result from maintaining the children in a nurturing and stable home.