January 28, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF T.B., J.B. AND JO.B., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-76-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2011 - Decided Before Judges Axelrad, Lihotz and J. N. Harris.
Defendant C.L. is the mother of the three children, T.B., J.B. and Jo.B., who are the subject of this guardianship action. C.L. appeals from a March 23, 2010 judgment terminating her parental rights and awarding guardianship of the three children to the Division of Youth and Family Services (the Division) for the purpose of effectuating their adoption. The judgment followed the second trial on the Division's complaint. Following entry of the initial judgment of guardianship, dated February 29, 2008, C.L. appealed and we reversed and remanded "for more detailed findings of fact and for further proofs, if necessary." N.J. Div. of Youth & Family Servs. v. C.L., No. A-3753-07 (App. Div. May 6, 2009), slip op. at 16. The matter was transferred to a different Family Part judge who obtained additional psychological and bonding evaluations and held an evidentiary hearing. The court concluded the Division had satisfied the statutory factors and again ordered that C.L.'s parental rights be terminated. On appeal, C.L. argues:
THE DECISION TO TERMINATE C.L.'S PARENTAL RIGHTS WAS NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL AND CREDIBLE EVIDENCE.
A. PRONGS 1 & 2: [THE DIVISION] DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT C.L.'S RELATIONSHIP WITH [THE CHILDREN] HAS CAUSED OR WILL CAUSE ENDURING HARM.
B. PRONG 3: [THE DIVISION] DID NOT PROVIDE "REASONABLE EFFORTS" TO REUNIFY C.L. WITH [THE CHILDREN].
C. THE TRIAL COURT MISINTERPRETED THE APPLICABLE STANDARD GOVERNING KINSHIP LEGAL GUARDIANSHIP.
D. PRONG 4: TERMINATION OF C.L.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD TO [THE CHILDREN].
We have considered the arguments presented in light of the record and applicable law. We affirm.
The facts leading up to the children's foster care placement are not disputed. The Division began its involvement with this family following T.B.'s birth in July 2003. Nineteen-year-old C.L. and the one-month-old infant were living in the Birth Haven Shelter. C.L. requested assistance to find permanent housing.
At the Division's request, C.L. underwent a psychological evaluation. The therapist questioned C.L.'s ability to physically and emotionally care for T.B., and recommended the Division continue its supervision of the family. The Division maintained an open file designating the family in need of services until January 16, 2004. There was no finding of abuse or neglect.
On September 16, 2005, a second referral was made when Hackensack University Medical Center (HUMC) contacted the Division the day following J.B.'s birth. The Division was advised C.L. had not sought prenatal care and had morphine in her system. Further, J.B. was delivered eight weeks early and tested positive for morphine. Following its investigation, the Division determined C.L. had been given morphine for a migraine during an emergency room visit the day before. Accordingly, it concluded the allegations of neglect were unfounded and closed its file on October 7, 2005.
Two days later, police responded to a domestic violence incident involving C.L. and the children's father, Ja.B. During the disagreement Ja.B. choked C.L. and then left their apartment. C.L. was granted a domestic violence temporary restraining order (TRO), barring Ja.B. from the home and from contacting C.L. or the children. The Division took no further action.
Two days after this incident, HUMC contacted the Division. C.L. had called a crisis line and reported suicidal and homicidal ideations for which she was hospitalized. The Division could not locate Ja.B. or another family member to care for the children, so it assumed custody, care and supervision and placed the children in foster care.
C.L. remained hospitalized for one week, suffering from post-partum depression. In working toward reunification, the Division requested C.L. undergo a psychological evaluation. The evaluator, Frederica Brown, Ph.D., concluded C.L. presented "several risk factors for potential abuse" of the children as she was overwhelmed by the responsibility of caring for the two young boys and periodically would erupt into violent behavior. C.L. had stated she had been angry with Ja.B. because he would not help her with the children, and she wanted to kill the baby. C.L. also admitted she initiated the violent altercation with Ja.B., but expressed no regret or remorse. Based upon Dr. Brown's recommendation, the children remained in foster care and C.L. was granted supervised visitation and commenced therapy and parenting classes.
The Division learned of other domestic violence incidents and expressed its concern regarding the turbulent relationship between the C.L. and Ja.B. C.L. acknowledged her interaction with Ja.B. provoked violence, but failed to comprehend how that adversely affected the children. She understood the TRO barred Ja.B. from the residence and agreed to participate in the Alternatives to Domestic Violence program (ADV). The Division returned the children to C.L.'s custody on May 25, 2006.
As soon as the children were returned, C.L. stopped attending counseling. Two months later, she called the children's prior foster mother to ask for assistance with the children because she was overwhelmed. When the Division investigated, it learned C.L. and the two children were again homeless. The family had been evicted from their shelter-residence after C.L. aided another to steal a resident's jewelry. The Division was informed C.L. returned to live with Ja.B., removed the children on July 19, 2006, and returned them to foster care.
Jo.B. was born on August 7, 2006. The infant was full term and of sufficient weight, but suffered from cardiac problems. C.L. requested the child be placed in foster care because she had no place to live.
The Division dismissed the protective services litigation and filed a guardianship complaint on November 9, 2006. The court continued the children's placement with their respective foster parents. The Division arranged for supervised visitation for C.L. and Ja.B and provided the parents with bus passes to attend the visits.
T.B. and J.B. moved through three different foster placements and a failed reunification with C.L. before being placed with their current foster mother in August and September 2007, respectively. They remain in her care and she has expressed a desire to adopt them. Jo.B. remains in his first placement and the foster parents have committed to adopt him.
On September 3, 2007, in the course of the guardianship proceeding, C.L. gave birth to her fourth child, Jr.B. C.L. had arranged to place the baby through a private adoption agency, which had been paying her rent. When she reconsidered and declined to complete adoption proceedings, C.L. was unable to pay her rent and was evicted.
The Division advised C.L. it intended to seek a hospital hold to prevent the baby from leaving the hospital with her. At C.L.'s request, the Division contacted Ms. R., her great aunt who resided in North Carolina, inquiring whether she would provide care for the children. Ms. R. agreed to accept care of Jr.B. The child continues to live with Ms. R. and is not involved in this litigation.
C.L.'s visits with T.B., J.B. and Jo.B. became more sporadic. She missed several visits and arrived late for others. The Division was notified that C.L. was discharged from therapy for nonattendance. C.L. completely stopped attending supervised visits with the three children on October 4, 2007 and moved to North Carolina on December 25, 2007.
Following her move, C.L. did not contact the Division and ignored its letters. The Division's caseworker traveled to North Carolina to deliver Jr.B. to her great aunt and visit C.L. She learned C.L. was living with Ja.B. and working evenings at a gentlemen's club. The Division offered to pay C.L.'s transportation costs to New Jersey so she could visit the three older children once each month. C.L. did not respond. Consequently, the next time she saw the three children was during a bonding evaluation.
At trial, the Division presented the testimony of its caseworker Priscilla Valentin, who related the Division's involvement with the family, and its two experts, Michael J. Fiore, Ph.D., who discussed his psychological evaluation assessing C.L.'s parenting abilities and Heather Diamond, LCSW, who testified regarding the results of her bonding evaluations. Additionally, C.L. testified on her own behalf.
In a brief written opinion, the trial court entered a judgment terminating C.L.'s parental rights and awarding guardianship of T.B., J.B. and Jo.B. to the Division. On appeal, we reversed and remanded for "more detailed findings of fact and for further proofs." N.J. Div. of Youth & Family Servs. v. C.L., supra, slip op. at 16.
The matter was assigned to a different Family Part judge for trial, which commenced on January 11, 2010. Without objection, the State presented all evidence offered in the first trial, including the trial transcripts. Additionally, the Division offered the expert testimony of Robert J. Miller, Ph.D., a licensed clinical psychologist who had performed a psychological evaluation of C.L. in August 2009, and updated bonding evaluations. Dr. Miller also discussed the results of a 2008 evaluation of T.B., undertaken to address the child's emotional and behavioral concerns.
After gathering the data from a clinical interview and psychological testing, Dr. Miller concluded C.L. suffered from an Axis II histrionic personality disorder and emotional instability. She also displayed several parenting deficits. He opined the three children "should remain in the care of their foster parents[.]"
Dr. Miller stated C.L. "was very difficult to interview[.] She provided information inconsistent with the record . . . or failed to mention things that were documented[.]" For example, she denied the prior domestic violence incidents with Ja.B. and that she was hospitalized for depression. C.L.'s other responses were evasive or dismissive of concerns regarding her behavior, including that she has not seen the children since December 2007. On this issue, C.L. claimed she "wasn't allowed" to contact the children. When confronted with the Division's offer of transportation to New Jersey, she offered excuses regarding work commitments. The results of the psychological testing confirmed C.L.'s "defensiveness and evasiveness."
Dr. Miller discussed what he termed C.L.'s "pattern of behavior" since the Division's involvement began. He also identified her psychological deficits and how they had and would continue to preclude her ability to provide safe, stable parenting for these young children.
First, Dr. Miller described C.L.'s "impulsivity, a pattern of not planning or [demonstrating] forward thinking." Illustrative of this trait was her failure to: seek prenatal care with all four pregnancies; disclose her pregnancy when seeking emergency treatment for a migraine, causing J.B. to ingest morphine; abide by the shelter's rules causing eviction; protect T.B. from exposure to pornography and sexual conduct because she believed he was too young to be affected; and maintain contact with the children for almost two years, again blaming work obligations.
Dr. Miller stated C.L.'s pattern of living with Ja.B. also bore out this finding. The two would be together until there was a conflict, then C.L. would move out. When the conflict subsided, she would return. The two would never remediate the problems to rectify the instability. The cycle would continue; all the while, the children witnessed the volatile relationship and were constantly uprooted. Dr. Miller stated this cycle created a very unstable world for the children, causing anxiety and emotional trauma. Further, the "[i]nstability in the [parental] relationship, evidence of domestic violence, aggression in the relationship, lack of support or consistency" disrupted C.L.'s continuous care for the children and sapped their "emotional nurturance."
Second, Dr. Miller found C.L. displayed narcissism, immaturity, and a lack of insight, finding she was "self-centered and lacking in empathy." During his interview, C.L. expressed being overwhelmed by the responsibilities of caring for the children and articulated thoughts that she wanted to kill Ja.B. because he would not assist with the children's care. The psychological testing also revealed C.L. had difficulty managing stress as well as anger.
Her statements and reactions also showed a complete lack of empathy or concern for the children's well-being. C.L.'s personality disorders and narcissistic traits precluded her understanding of the impact of her behavior on the children. For example, when asked about her future plans, C.L. suggested she wanted to "get the children back," and maybe "move back" to Trinidad and Tobago. She had no concern for how the children would be impacted by moving or separating them from their foster parents.
Third, Dr. Miller stated C.L. was unable to decenter herself and make the children's needs her priority. Dr. Miller opined it was "probable" that C.L.'s "primary motivation" was to maintain her relationship with Ja.B., which she elevated over the needs of her children. C.L.'s actions and reactions during the bonding evaluations, discussed in detail below, highlighted this difficulty.
Dr. Miller concluded these personality deficits significantly impeded C.L.'s safe, consistent parenting. The children's lives were disrupted, depriving them of stability and consistency. Further, C.L.'s emotional disorders, including her uncontrolled anger, disregard for the children's well-being and lack of empathy were reflected in the children's current behaviors. Taken together, these factors adversely impacted their development. Dr. Miller also opined C.L.'s emotional problems and personality deficits would not be abated because of C.L.'s resistance to counseling.
Dr. Miller stated T.B. was most affected because he was in C.L.'s care for the longest period of time. Dr. Miller discussed his findings from a 2008 evaluation of T.B. The evaluation was triggered when T.B. began acting out sexually, demonstrating anxiety, experiencing nightmares and becoming disruptive in school. T.B. spoke of being physically disciplined by C.L. and called her "C. monster." Further, from the child's comments, Dr. Miller determined T.B. was over-stimulated from "witnessing the sexual behavior of his biological parents" and viewing pornography on television, which he "experienced as aggression." T.B. was also hyperactive and suffered anxiety, two conditions which were linked to the instability of his early childhood with C.L. T.B. also exhibited signs of a lack of attachment stemming from abandonment, such as referencing his biological mother by her first name.
Dr. Miller was also asked to conduct bonding evaluations between C.L. and the children. He observed C.L. with T.B. and J.B., then C.L. and Jo.B. Finally, Dr. Miller observed the children with their respective foster parents.
C.L. attended the bonding evaluations accompanied by her fifth child, a newborn daughter. During the session, Dr. Miller found the meeting had a "lack of affection or warmth," noting the two older children avoided C.L. and did not address her as "mom." The boys played at a distance from C.L. and did not seek her for comfort. C.L. used demands and control to get the children's attention. For example, she grabbed T.B. and pulled him towards her. After one "hug," T.B. left the room to talk to his foster mother. C.L.'s efforts to engage the children by asking questions were unsuccessful. The two boys ignored her and did not respond. At one point T.B. became over stimulated and agitated, but C.L. did not try to calm or redirect him. C.L. made few attempts to connect with J.B. When T.B. went to the bathroom leaving C.L. alone with J.B., she did not address the child. Instead she attended to the baby. When Dr. Miller stated the meeting neared its end, the two boys started to leave. C.L. told them to return and give her a hug. The two complied and "received her hug passively."
In the evaluation with their foster mother, T.B. and J.B. were very comfortable and exhibited a solid relationship with her. The foster mother was "cooperative" and "emotionally warm" with the boys. At one point in their session she redirected T.B., who was overpowering his younger brother and her methods were categorized as "sensitive engagement." She patiently showed genuine interest in the boys' play, participating but allowing them to direct and be creative. They both called her "mom" and looked to her for comfort, demonstrated by their physical contact.
The foster mother related that the boys had adjusted well. She explained she had initiated counseling for T.B., which continues. Consequently, his behavioral problems had abated allowing him to be calm, playful and to excel in school. J.B. had overcome his shyness and was receiving speech therapy.
C.L.'s bonding evaluation with Jo.B. was marked with distress. Upon separation from his foster mother, Jo.B. became overwhelmed and frightened. He was "inconsolable" and avoided C.L. Rather than soothing the child, C.L. "attempted to control him physically," which heightened his discomfort. The child repeatedly stated, "I want to leave." As a result, C.L. became "frustrated and angry;" she was unable to "address [Jo.B.'s] distress in an emotionally sensitive manner." She told him he had to stay. Then C.L.'s infant awoke and she too began to cry. C.L. did not "shift her focus" to address the baby's needs, she just ignored her and continued to direct Jo.B. to play. Both children continued to cry until C.L. ended the session after seven minutes.
In marked contrast to this chaotic session, the sixty minute observation of the foster parents with Jo.B was one of "sensitivity, emotional warmth, and close physical contact" between the foster parents and the child. The three played, talked and laughed. Jo.B. frequently made eye contact with the adults and smiled. He felt free to explore the room and the toys. Dr. Miller concluded Jo.B. was "securely attached" to his foster parents and they were his psychological parents, providing him "safety, care and nurturance."
In summary, Dr. Miller found the three boys' "behaviors [with C.L.] were characterized by avoidance." By contrast, all three children sought bodily contact or proximity with their foster parents, made eye contact, and engaged in imaginative play. All three referred to their respective foster mothers as "mommy" or "mom." Dr. Miller concluded if C.L.'s parental rights were terminated, all three boys "would go on," and "they understand the foster parents in all three cases as their parent." He testified all three children would suffer "irreparable psychological harm" if separated from their present foster parents, a harm which C.L. would be incapable of mitigating. Dr. Miller agreed that T.B. and J.B. know C.L. and possibly were aware that she was their mother, but they did not view her as a caregiver. Specifically addressing the effect on Jo.B., Dr. Miller asserted the results "would be devastating" to his development as he has no relationship with C.L. and it would be like "sending him to a stranger[.]"
The Division also presented the testimony of a caseworker in the Adoption Unit, Priscilla Valentin, who had worked with the family from April 2007 until Fall 2009. She discussed the Division's past interactions with C.L., the services it extended, and the positive changes she saw in the children's development from the date of removal.
After she was assigned the case, Valentin went to C.L.'s home in North Carolina, at the same time she placed Jr.B. with C.L.'s aunt. Valentin learned C.L. was living with Ja.B. and working nights at a gentlemen's club. She had made no specific plans to accommodate the three older children or financially provide for them were she to regain custody. Additionally, C.L. was not attending therapy. C.L. never called to make arrangements for visits, even when she was in New Jersey to attend Dr. Miller's evaluations.
Valentin also testified as to the status of the children. T.B. and J.B. were "flourishing" under the care of their foster mother, who had provided for them since September 2007. She attends family therapy with T.B., whose behavioral problems have disappeared. At the time of trial, Valentin described the child's progress as "fantastic." J.B. has no serious special needs, although he attended speech therapy. She stated he was shy when first in the foster home, but had developed into an outgoing child. Jo.B. had received early intervention speech therapy from which he was successfully discharged after turning three. Jo.B. calls his foster parents "mommy" and "daddy" and plays well with the foster parents' children, who are nurturing with him.
Valentin stated the children's foster parents were very committed to their well-being and want to seek adoption. The three siblings have contact with one another. The foster parents arrange telephone contact, play dates, exchange of photographs and celebrations of each other's birthdays. The adults have committed to continue this communication if permitted to adopt the children.
C.L. testified on her own behalf, relating the events precipitating the removal of the children. Much of C.L.'s testimony displayed contradiction from the evidence proffered by the Division or statements she made in the first trial. Contrary to Valentin's testimony, C.L. stated she complied with the Division's requests to attend services, declaring she had completed parenting classes and ADV counseling. She rejected the accuracy of the Division's records. As to individual therapy, C.L. admitted her past attendance was spotty because of work schedule conflicts. She claimed the Division refused to help her coordinate therapy once she moved to North Carolina, then averred she was unable to get therapy in North Carolina because "they don't do charity care." In another statement she asserted she would send the children for therapy if she regained custody because they would be eligible for Medicaid and she had researched therapy services near her home. Finally, she denied needing any therapy and asserted she is perfectly able to care for her children.
C.L. stated the two older boys were taken by the Division because she failed to release her address and because she mistakenly believed she could supervise Ja.B.'s time with them and stated she "never understood" his presence was problematic.
C.L. asserted she secured an apartment and worked as an adult entertainer earning "over $800 a week" and could care for the children due to her flexible workday. C.L. worked from 5:00 p.m. to 2:30 a.m., four days per week. She admitted she was not truthful in the first trial when she said she worked for her aunt's cleaning business. C.L. stated she had made arrangements with a "licensed caregiver" to watch her infant. She had not checked whether this individual would also be willing to provide care for the three older boys.
Also, C.L. admitted she misled the Division about her relationship with Ja.B, including falsely testifying in the first trial; the two had been living together in North Carolina since February 2008.
C.L. attacked the Division's efforts to place the children with her family members, claiming she told the Division the names of Ms. R.'s sisters who were possible placements resources for the children, which it failed to investigate. She later admitted she did not tell the Division, but believed her aunt may have given these references.
While acknowledging she had not seen the children in two years, C.L. claimed she called the Division four times and left messages requesting visitation, but no one ever returned her calls and she "didn't know" if she had the right to visitation. She also stated she was told by the Division that there was nothing she could do to secure the children's return.
C.L. believed the children would not be harmed by the separation from their foster placements. She disregarded the comments of Dr. Miller, maintaining that they should be with their mother.
The court's March 23, 2010 opinion addressed the clear and convincing evidence supporting the statutory requirement for termination of parental rights. N.J.S.A. 30:4C-15.1. The court considered the evidence proffered in the first trial but relied upon the testimony presented during the remand hearing.
In assessing the evidence, the trial judge found C.L. had "been less than honest and forthright throughout the judicial proceedings." The judge credited the evaluator's identified contradictions in her statements and identified her testimony regarding her income, occupation, and relationship with Ja.B. was at odds with her testimony during the first trial.
The opinion addressed the facts applicable to each prong of the statutory test for termination of parental rights. The court found C.L.'s failure to obtain prenatal care, engaging in sexual activity in front of T.B., her unabated anger management issues and serious emotional problems collectively contributed to harm the children. Further, the court found C.L. had effectively abandoned the children by failing to attempt any communication, contact or offer of support, despite her reported substantial income and the Division's urgings for two years. Overall she had never undertaken the "daily responsibilities of raising a child," concluding her parental capacity was not only disruptive, but "absent and deliberate" with "no regard for the harm" the children would suffer once removed from their foster parents.
Addressing the second prong, the trial judge found C.L. consistently placed Ja.B.'s needs over those of the children, which was exemplified by giving up custody of Jo.B. in July 2006 because Ja.B. "thought it would be a good idea." The court concluded "as long as she had a relationship with [Ja.B.], her relationship with the children was immaterial[.]" The trial judge also weighed C.L.'s lack of stability, noting she repeatedly moved because of her poor judgment. Importantly, the court found C.L. failed to complete any psychotherapy programs and the psychological evaluations found her prognosis to be poor because of her non-commitment to changing. Overall, the court concluded there was no evidence C.L. could "provide a safe and stable home for the children."
Regarding the third prong, the court enumerated the myriad of services extended by the Division to aid C.L.'s "rehabilitation and improvement," including a variety of therapy services, visitation, psychological evaluations, parenting classes, ADV counseling, and even the offer of payment to effectuate visitation following her move. The trial judge concluded "any blame . . . placed for [the] failure of reunification . . . belongs directly on the shoulders of C.L." as "she has made no efforts to cooperate" with the Division in removing the "barriers toward unification."
The court addressed C.L.'s claim the Division failed to explore alternative caregivers and Kinship Legal Guardianship (KLG). KLG was determined to be inapplicable because adoption was feasible and likely. Here the foster parents, "have provided safe, secure, and loving homes," and wish to adopt the children.
Finally, in assessing the important fourth prong, that termination will not do more harm than good, the court was convinced the harm resulting from removing the children from their current stable foster placement was not outweighed by the harm inherent in termination of C.L.'s rights to custody. In light of the "strong bonds between the children and the foster parents, [and] the lack of any credible evidence of attachment between the children and [C.L.], . . . [t]he best interests of the children demand termination of parental rights." A Judgment of Guardianship was entered terminating C.L.'s parental rights to T.B., J.B. and Jo.B. This appeal ensued.
As a threshold matter, the scope of appellate review in a termination of parental rights case is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "The factual findings, which undergird a judgment in such a case should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988)). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the  court's credibility determination[s] and the judge's 'feel of the case' based upon his . . . opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007). See also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (stating deference is afforded to a trial court's findings of fact as the trial court "has the opportunity to make first-hand credibility judgments about witnesses" who testify). The trial court's "'feel of the case'  can never be realized by a review of the cold record." E.P., supra, 196 N.J. at 104. We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13. "However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations and citations omitted).
Additionally, our review is guided by the following legal principles. The right of parents to enjoy a relationship with their children is constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Parents have a fundamental liberty interest in raising their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). Both the federal and state constitutions protect the inviolability of the family unit. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. See also J.N.H., supra, 172 N.J. at 471. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J. at 347.
"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). Nevertheless, some parents "may at times be acting against the interests of their children[.]" Ibid. When "experience and reality  rebut[s] what the law accepts as a starting point," Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119, the State's parens patriae obligations are triggered. "More recently, 'concern has arisen for the best interests of children whose parents have forsaken their parental duties. The child's right to a permanent home has gained increasing prominence.'" In re Guardianship of P.P., 180 N.J. 494, 505 (2004) (quoting In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999)). Undoubtedly, a child's need for permanency and stability is a critical factor in guardianship cases.
When a child's biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise the child without causing the child further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents[,]" and the "burden falls on the State to demonstrate by clear and convincing evidence that the natural parents have not cured the initial cause of harm," and they "will continue to cause serious and lasting harm to the child." Ibid.
While recognizing the fundamental nature of parental rights and the need to preserve and strengthen family life, the Legislature has also recognized "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). This responsibility, in some cases, requires that the parent-child relationship must be severed. A.W., supra, 103 N.J. at 599.
"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. The best interest standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, was codified in N.J.S.A. 30:4C-15.1(a), and requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:
(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 "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." 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. With each of these principles in mind, we turn to our review of the arguments advanced by C.L.
First, C.L. argues the record does not support the court's determination that the Division proved by clear and convincing evidence she had caused or will cause harm to her children. She argues she only needed the Division's assistance for discrete periods of time, and should not be punished for acting responsibly. C.L.'s argument ignores the uncontroverted facts in this matter and is rejected.
To meet the first prong of the termination statute, the State must show a harm threatening the child's health and well-being, which is likely to have a continuing deleterious effect on the child. K.H.O., supra, 161 N.J. at 352. "[T]he focus is on the effect of harm arising from the parent-child relationship over time on the child's health and development." Id. at 348. The absence of physical abuse or neglect is not conclusive; the court also must consider the potential for serious psychological damage. A.W., supra, 103 N.J. at 605; N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002); In re Guardianship of R.G. & F., 155 N.J. Super. 186, 194 (App. Div. 1977). "A parent's withdrawal of  solicitude, nurture, and care for an extended period  is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
Prongs one and two are related, as the second prong considers a parent's failure to provide even minimal parenting to his children. Id. at 379. The second prong of the statute "may be met by indications of parental dereliction and irresponsibility, such as . . . the inability to provide a stable and protective home[.]" K.H.O., supra, 161 N.J. at 353. The court examines whether the parent has consistently undertaken efforts to curtail the effects of the identified harms.
Contrary to C.L.'s contentions, the children were not in foster care for "discrete periods" while she arranged housing or employment. Also, the harm identified by the Division was not merely the unpredictable relationship between C.L. and Ja.B. or the past incidents of domestic violence. The trial court found harm to the children's safety and well-being was directly caused by C.L. when she: (1) neglected prenatal health; (2) did not disclose her pregnancy of J.B. and accepted morphine, which was found in the baby's system at birth; (3) never provided a stable home but moved between shelters as a result of conflict with Ja.B. or eviction resulting from her anti-social acts; (4) used corporal punishment when disciplining T.B.; (5) exposed T.B. to sexual activity and pornography, contributing to the child's "anxiety and depressive symptoms"; (6) refused to make the children's needs a priority and instead capitulated to Ja.B.'s desires or her own needs; and (7) made no plans specifically addressed to providing for the children's care and support, despite the inordinate passage of time. Most importantly, the trial judge made detailed findings regarding C.L.'s complete rejection of contact with, support of or care for the children for two full years.
A finding of abandonment will satisfy the first two prongs of the statute. "Abandonment requires a finding that a parent has willfully forsaken obligations, although physically and financially able to discharge those obligations." In re Adoption of Children by L.A.S., 134 N.J. 127, 134-135 (1993) (citing N.J.S.A. 30:4C-15(d)). Abandonment is shown when a parent engages in a course of conduct that evidences a settled purpose to forego all parental duties and relinquish all parental claims to the child. In re Adoption of Children by N.M., 96 N.J. Super. 415, 426 (App. Div. 1967).
The evidence clearly and convincingly demonstrated that C.L. was unable or unwilling to eliminate the harm to the children. She never provided a safe or stable home, rejected therapy, disregarded the Division's urgings to focus on the children, saw no harm in exposing these young children to the volatile, aggressive relationship with Ja.B., ignored the Division's offers to visit the children, lacked empathy and the ability to recognize each individual child's needs and generally had no idea what special care her sons needed, ensuring their prolonged foster care stays. C.L.'s testimony alone demonstrated she would act as she impulsively saw fit at that time. Moreover, the bonding evaluations revealed her inability to successfully remediate a simple everyday event that is a child's situational upset.
The trial court's findings on prongs one and two are amply supported by the credible evidence in the record. We concur with the conclusion that the children's health, safety or development has been and will continue to be endangered by the parental relationship with C.L. who, despite the extension of services by the Division, failed to eliminate the harm to the children. N.J.S.A. 30:4C-15.1(a)(1) and (2). Without question, the totality of these circumstances have "endanger[ed] the health and development" of the children, satisfying prongs one and two. D.M.H., supra, 161 N.J. at 379.
We wholly reject as without merit C.L.'s challenge suggesting the Division failed to provide reasonable efforts to effectuate reunification as required by prong three. K.H.O., supra, 161 N.J. at 353. R. 2:11-3(e)(1)(E). We add these brief comments.
In the recitation of the facts, we have identified the myriad of services extended to C.L. from the time of removal. C.L.'s compliance was inconsistent and she never achieved completion of any program she attended. Moreover, C.L. declined to engage services from July 2007 until departing for North Carolina. While in North Carolina, C.L. was advised of the necessity of commencing therapy and visitation, but chose not to do so. It is well-settled that the Division's efforts are not measured by their success. D.M.H., supra, 161 N.J. at 393. C.L.'s failure to comply with services thwarted any hope of reunification.
Additionally, we are not persuaded by C.L.'s claim the Division failed to investigate available family members to care for the children upon removal. When C.L. was hospitalized she was asked to provide the names of relatives to avoid the children's foster placement. She offered none. Not until her fourth child was born did she mention her aunt in North Carolina. Ms. R. was authorized to accept one child and Jr.B. was placed with her thereafter.
We consider the Division's actions proper. No one provided the Division with the names and addresses of the other relatives. C.L. only generally knew one of Ms. R.'s sisters lived in Atlanta. The Division only can act on the information it is provided. C.L.'s failure to be forthright does not impose an obligation on the Division to unearth her family members.
C.L. next claims that termination of her parental rights will do more harm than good because termination is inherently detrimental to the child. Other than this broad policy argument urging courts to deny termination, C.L. posits no error in the trial court's findings or conclusions.
We agree children experience harm when parental contact is severed. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 264 (App. Div. 2005). However, in this matter any harm from separation occurred when C.L. moved to North Carolina, fracturing what fragile ties she had with these boys.
Under this prong the question is "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 the foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4)[.]" Id. at 363.
Here, the children are solidly bound to their foster parents while, to them, C.L. is a stranger. Crediting the experts' testimony, the trial judge determined the children would be at risk if placed with their mother and the harms posed would not be abated because of C.L.'s emotional instability, disinterest in counseling and indifference to the children's needs. Conversely, the foster parents who had become the psychological parent to each child, were devoted to each boy's security and well-being.
C.L.'s final challenge argues the trial court erred in finding there were no relatives with whom the children could be placed, suggesting the fact that Jr.B. was placed with Ms. R. revealed there were family options available. This bootstrap contention is not borne out by the facts. The trial testimony was that Ms. R. could only care for one child, not four. C.L. identifies no evidence demonstrating viable family options existed for the three older boys.
We have made clear, KLG is not intended as an equally available alternative to termination that must be considered in order to satisfy the third element of N.J.S.A. 30:4C-15.1. Rather, . . . it is an intended option where parental neglect and poor prospects for change in the foreseeable future are established, but adoption is neither feasible nor likely[.] [N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 88 (App. Div. 2003).]
Here, the adoption of T.B., J.B. and Jo.B. was both feasible and likely and no relative placements were possible, obviating consideration of KLG as an option.
C.L. also argues "[t]here is an impermissible conflict between the federal and New Jersey law relating to KLG and financial subsidies available to kinship caretakers." She suggests the eligibility standards and notice provisions for financial support afforded caretakers under New Jersey law is divergent from federal standards, making decisions regarding KLG more difficult. C.L. claims that the New Jersey KLG Act, N.J.S.A. 3B:12A-6, sets a standard for ruling out adoption in favor of KLG only when adoption is "neither feasible nor likely," which is higher than the federal Fostering Connections to Success and Increasing Adoptions Act of 2008 (FCSIAA), 42 U.S.C.A. § 673, allowing KLG as an "appropriate permanency option." She concludes this difference creates an "impermissible" conflict "under the Supremacy Clause."
C.L. seems to suggest New Jersey's statute discourages choosing KLG because a caregiver is aware of adoption subsidies but not those offered for KLG at the time the Division decides whether adoption is "neither feasible nor likely." The logical conclusion of this argument is a caretaker's decision regarding a child's fate -- to adopt or pursue KLG -- is a financial one.
We conclude the claim is meritless. The FCSIAA, which governs federal subsidies for foster care and adoption assistance, is not implicated in this matter. In any event, no issue of preemption exists.
Preemption occurs "where state law impedes the achievement of a federal objective; . . . even if federal and state law are not mutually exclusive . . . preemption will be found if state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." R.F. v. Abbott Labs., 162 N.J. 596, 620 (2000) (internal quotations and citations omitted). It is a long standing principle that "the whole subject of the domestic relations of . . . parent and child belongs to the laws of the States and not to the laws of the United States . . . . State family . . . law must do major damage to clear and substantial federal interests before the Supremacy Clause will demand that state law be overridden." Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S. Ct. 802, 808, 59 L. Ed. 2d 1, 10-11 (1979) (citations and quotation marks omitted). Nothing in the FCSIAA suggests an intent to overturn this long standing tenet of federalism by now having the federal government dictate the standards by which a state must determine termination of parental rights or custodial provisions for children.
The KLG Act governs the appointment of a kinship legal guardian rather than the State in those situations where the parents are unfit and it is in the child's best interest for a family caregiver to assume full legal custody, care and supervision of the child.*fn1 Guardians appointed pursuant to the KLG Act receive appropriate subsidies as authorized by the FCSIAA. The KLG Act in no way impedes the manner of dispersing subsidy funds and nothing in the FCSIAA suggests an intent to direct the substantive state law setting the parameters of a state's KLG program.
We conclude the KLG Act imposes no obstacle to the effectuation of the FCSIAA. The FCSIAA dictates the manner in which funds will be dispersed, not whether KLG must be preferred or ruled out over adoption. Therefore, nothing in the KLG Act suggests a limitation of the receipt of the federal funds by someone who is appointed a kinship legal guardian.
In summary, we determine no basis to interfere with the judgment, which terminated C.L.'s parental rights and awarded the Division guardianship, for the purposes of assisting the foster parents' adoption of T.B., J.B. and Jo.B.