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New Jersey Division of Youth and Family Services v. M.V. and J.Z

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 31, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
M.V. AND J.Z., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF X.Z., A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-111-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 4, 2011 -

Before Judges Carchman, Graves, and Waugh.

Defendants M.V. (Mary) and J.Z. (James) appeal from a March 11, 2010 judgment of the Family Part terminating their parental rights to their child, X.Z. (Xena), and awarding guardianship to the New Jersey Division of Youth and Family Services (Division).*fn1

We affirm.

I.

We discern the following facts and procedural history from the record.

Mary gave birth to Xena on March 18, 2008. Despite initial denials, James was determined to be Xena's father. The Division began its involvement with this family on June 18, 2008, when it received a referral from the Union City Police alleging that James had physically assaulted Mary at a Burger King. According to the referral, James struck Mary, threw soda in her face, and kicked the baby stroller in which three-month-old Xena was sitting. The police investigation concluded that James had become jealous when other men talked to Mary in the restaurant. James was arrested for simple assault. Mary subsequently refused to press charges, claiming that "nothing had happened." She denied that James threw a drink on her or that their relationship involved domestic violence.

When the Division's worker interviewed James, he denied that he was Xena's biological father. Despite the fact that he was trembling, unable to stand straight, and smelled of alcohol, James denied that he had been drinking. He eventually admitted that he had consumed six to eight beers that day, while he was baby-sitting Xena.

Upon further investigation, the Division learned that Mary lost her housing in April 2008 and had been staying overnight on the street, in parks, and at different motels. She reported spending several hours a day at Burger King for shelter. At the time of the Division's investigation, Mary did not have a key for a motel or funds to secure a room. When asked whether she had sufficient food to give Xena for the night, she showed the caseworker a container containing enough formula for one more bottle. She was hoping James would give her money.

Initially, Mary refused the Division's offer to place her and Xena in a shelter for the night. She then changed her mind and consented to a safety plan, which included spending the night at a shelter and going to a store with the caseworker to purchase supplies for herself and the baby on the following day.

The next day, the caseworker brought Mary to the county welfare office so that she could apply for assistance. Mary was unable to complete all of the paperwork that day and was instructed to return the following day. When Mary and the caseworker returned, Mary refused to provide information necessary to complete the application for assistance. A worker explained to Mary that her refusal to cooperate would prevent her from obtaining welfare services. Mary wrote a statement in Spanish that a worker translated to say: "I don't want because he doesn't want child support."

Because Mary refused to cooperate with the welfare office to obtain the basic resources required to care for Xena, the Division effectuated an emergency removal on June 20, 2008. Xena was placed with a foster family.

On June 24, 2008, the Division filed a complaint for custody, and sought an order to show cause (OTSC). The Family Court judge found that the emergency removal of Xena was proper and in her best interests, and issued the OTSC. The order required Mary to cooperate with the welfare office in applying for assistance.

Both Mary and James appeared at the application for the OTSC. James informed the caseworker that he was expecting to receive a $1500 check, and that he would obtain an apartment for the family. In the meantime, he was living with relatives, and Mary was living with a friend.

On June 27, 2008, a caseworker visited Xena at the home of her foster family. The worker observed that Xena was happy and active, and that her foster home was well-kept.

On July 15, 2008, James attended his first visitation with Xena following the child's removal. The visitation was also scheduled for Mary, but she did not attend. James informed the worker that he did not have a permanent residence and was staying with his cousin and at different hotels. He explained that his current employment involved placing signs along highways. He stated his weekly salary was $300 when he worked on a full-time basis, but that he was not consistently working full-time due to the poor economy. He asserted that he was a legal resident of the United States, but did not know his social security number.

When asked about his relationship with Mary, James explained that, although they were still seeing each other, it was "not serious," but he also asserted that "he would like to settle in with her and their daughter in an apartment."

Finally, he explained to the caseworker that he had an aunt who might be willing to care for Xena until Mary and James were able to resume custody, and agreed to provide the aunt's contact information at the next visit. The caseworker advised James that if he and Mary were unable to provide permanency and stability for Xena in twelve to fifteen months, the Division would consider seeking termination of their parental rights.

On July 18, 2008, caseworkers again visited Xena at her foster parents' home. The foster parents told the caseworker that, while they hoped Xena's parents could get back on their feet, they would be willing to adopt the child.

Mary attended her first visit with Xena on July 22, 2008. She informed the Division's worker that she did not have a permanent residence and was staying at a motel in North Bergen. She also told the worker that she was earning $150 per week cleaning one house. She asserted that she was a legal resident and provided her social security number.

When asked about her relationship with James, Mary stated that they had not seen each other for two weeks, but that they were "serious." She asked the worker if the Division could provide "services dealing with aggressive behavior toward her." The worker advised her that North Hudson Community Action Program (NHCAP) offers domestic violence classes for women and men. Mary expressed an interest in the classes.

The caseworker inquired about family members who might be able to take care of Xena. The caseworker told Mary that the Division had contacted her adopted sister, M.V. (Melissa), in regard to fostering Xena, but that Melissa had declined in a letter dated July 28, 2008, stating she did not have time for a responsibility of that magnitude.*fn2 The worker had also contacted Mary's brother, but he responded that he could not care for Xena because he is in poor health. Mary told the worker that she already knew that her family would be unable to help and that she knew of nobody else who she would trust with her daughter.

The caseworker explained to Mary that termination would be considered if she and James did not attain permanency and stability in twelve to fifteen months. The worker then addressed the possibility that Mary might be pregnant. The worker referred Mary to NHCAP so that she could obtain prenatal care if necessary. The caseworker's contact sheets indicate that Mary continually received health care at NHCAP, but do not indicate that she was pregnant.*fn3

On July 29, the judge heard the return on the order to show cause. She continued custody of Xena with the Division and ordered Mary and James to submit to psychological evaluations and comply with domestic violence counseling. She also ordered James to attend intensive anger management classes and Mary to attend job training.

James visited Xena on August 1, 2008. Both parents attended a visit on August 26, but arrived over an hour late. James explained that they were late because he had broken his leg. At that time, the worker reminded them of the scheduled dates for domestic violence classes and psychological evaluations.

During the visit, the worker heard James curse at Mary when she briefly walked away from them. When the worker told him to compose himself, he said he did "not want anything to do with [Mary] and she could go where ever she chooses but to leave him alone." A substance abuse referral was also completed for James at that visit, and he was informed that his evaluation was scheduled for September 2.

On September 2, 2008, James failed to attend his evaluation. Both James and Mary also failed to attend a scheduled visit with Xena. The assessment was rescheduled for September 8, but James again failed to attend.

On September 9, 2008, Mary and her adult daughter, A.C. (Alice), visited Xena. During the visit, the caseworker reminded Mary that a Family Team Meeting was scheduled for September 19, 2008, and that her psychological evaluation was scheduled for October 3, 2008.

The caseworker told Mary that James had missed his second drug evaluation appointment and asked if James did "any other illicit drugs." Mary "stayed quiet and then said it was very possible." Mary then began to cry and told the worker that she missed her visit with Xena last week because James would not allow her to go. She also told the worker that James sold her social security card, green card, and other identification for $100. The worker directed Mary to file a police report regarding the incident and provided a list of shelters she could go to for domestic violence.

On September 16, James again missed his drug assessment, and both he and Mary missed another scheduled visit. On September 19, 2008, Mary called and left a message explaining that she was not feeling well and could not attend the scheduled Family Team Meeting. The Division conducted the meeting, but only the foster parents were in attendance.

At the meeting, the foster parents again expressed their hope that the parents would work things out, but said they were open to the idea of adoption. Case Practice Specialist Sonia Alonso also requested that the caseworker further explore the possibility of Mary's daughter, Alice, as a placement option. Although Alice had advised the caseworker numerous times that she was not able to care for Xena due to her own involvement with the welfare system and her plans to move to Massachusetts, the caseworker agreed to further explore this possibility.

On September 25, 2008, Mary was scheduled to begin domestic violence classes at 6:00 p.m. She arrived at the location at 3:00 p.m. A clinician told her to come back at 6:00 for the session, but Mary did not return. Because Mary did not have a working phone, a caseworker tried to contact Mary by leaving a message with Alice. Mary did not respond.

On September 27, 2008, Mary called to confirm her scheduled visit with Xena for the following day, but nevertheless failed to attend the visit. The Division had provided her with a bus pass and made her aware of the transportation schedule. On September 30, 2008, Mary missed another visit with Xena because she overslept. On this same day, a worker enrolled Mary in a parenting class which was scheduled to start on October 30, 2008.

Mary and James both missed their psychological evaluations, which had been scheduled for October 2 and October 3 respectively. Mary attended a visit with Xena on October 7, 2008, but missed a scheduled visit and court hearing on October 14, 2008.

At the court hearing on October 14, the judge determined that Mary had placed Xena at risk of harm due to her lack of housing and "failure to cooperate with the Division and [the] Hudson County Welfare Office in order to obtain stable housing."

Mary attended a visit on October 21, 2008. At that time, Mary told the caseworker that she had a temporary place to stay, but was not receiving any income. She also had not applied for welfare, as she had yet to obtain a new social security card. Mary stated that she forgot about her scheduled psychological evaluation in October. The caseworker advised her that it was rescheduled for November 22, 2008. The caseworker also provided Mary with a list of homeless shelters for victims of domestic violence and directed her to the Social Security office. Mary told the worker that she was no longer with James and had not seen him for weeks. She believed he did not want to be involved with the Division for fear he would be incarcerated again.

Mary missed her scheduled visit with Xena the following week on October 28, 2008, but attended a five month review meeting on November 10, 2008. She brought her sister Melissa and Melissa's husband. Melissa explained that she could not be a foster resource for Xena because her life was "extremely hectic," but that her mother might be willing to help. Melissa also told the Division that she intended to take Mary to Reading, Pennsylvania, to help her start a new life. She also intended to help her get her legal documents back from the person to whom James sold them. The Division explained that although the Division's plan was still reunification with Mary, they were simultaneously considering adoption by the foster parents if no other family resource could be found.

November 12, 2008, Mary attended a visit and was accompanied by Melissa and her mother. Xena was teething and started crying. According to the worker, Mary "could not deal with her" and handed the child to Melissa. Later that day, Mary left New Jersey to live with Melissa in Pennsylvania. She also retrieved her stolen identification. The following day, the Division sent Mary information regarding application for welfare in Pennsylvania.

On November 22, 2008, Dr. Manuel A. Iser conducted a psychological evaluation of Mary. Iser recommended that she engage in parenting skills classes and individual psychotherapy, and also that she secure an appropriate living environment and engage in a program for victims of domestic violence. He did not recommend reunification at that time.

In December 2008, Mary left her sister's home and returned to New Jersey. She told the Division that she was living with different friends and acquaintances, but refused to provide any information about the friends. She also said that she was working at a factory in the Bronx, but refused to provide further information.

The Division contacted Mary's daughter Alice in mid-October 2008 about serving as a placement option. Alice again responded that she was unable to care for Xena because she did not have the space, the financial resources, or time to assume that responsibility. Based on the renewed refusal, the Division issued a relative rule-out letter to Alice on December 31, 2008.

A compliance review hearing was held on January 13, 2009. Mary appeared, but James did not. The judge ordered that James attend substance abuse treatment for alcohol abuse and anger management classes. She ordered Mary to comply with domestic violence counseling, parenting skills and work-force training, and to obtain welfare and explore domestic violence shelters.

In February 2009, Mary provided the Division with documentation indicating that she obtained welfare assistance. She received food stamps in the amount of $263.59, $289 in cash, and her housing application was pending. Mary informed the caseworker that she was attending parenting classes, which conflicted with her scheduled domestic violence classes. Mary and the caseworker agreed that she would attend the domestic violence classes upon completion of the parenting classes.

Mary attended visits with Xena on March 3, 10, 17, and 24, 2009. At the March 24 visit, Mary informed the caseworker that she planned on living with a friend in Union City on a permanent basis, and would get back to the worker with her friend's information so that background checks could be conducted. By late April, however, Mary informed the worker that she would not be residing with her friend, who "was not willing to get involved with DYFS," and stated that she would live with Alice when she obtained an apartment.

In April 2009, James and Mary appeared for a compliance review hearing. James was again ordered to comply with a substance abuse evaluation, as well as anger management and psychological evaluations. Mary was ordered to complete individual counseling and domestic violence classes.

James finally submitted to a substance abuse evaluation on April 17, 2009. He tested positive for cocaine and was referred to North Hudson Community Action Corporation for treatment to begin on July 8, 2009.

On April 20, 2009, Mary, her sister Melissa and her mother attended a ten month Family Discussion. Also present was James, who had been recently released from jail. The caseworker reminded James and Mary that a permanency hearing was scheduled for June.

On June 16, 2009, neither parent appeared for the scheduled hearing and a permanency order was entered. The judge accepted the Division's permanency plan of termination of parental rights followed by adoption, based on the parents' failure to complete services or obtain stable housing. A time frame of six months was approved by the judge.

On July 14, a caseworker met with Mary following her visit with Xena. She informed Mary that the case had been transferred to the adoption unit because she and James had failed to comply with services. Mary asserted that her daughter Alice was interested in taking care of Xena. The worker explained that the Division would need to explore Alice as a caregiver.*fn4

As of July 16, 2009, Mary was living with James in Weehawken and was three months pregnant. However, she was not complying with domestic violence counseling or parenting classes, and remained unemployed. James had not attended anger management training or NHCAP. Mary's visits with Xena were sporadic, although her daughter Alice would attend when Mary failed to do so.

On July 31, 2009, a caseworker assessed James and Mary's home for reunification. The couple lived in a one bedroom apartment with James's mother. They said they intended to remain there if approved for reunification. James was again referred to substance abuse counseling, parenting classes, and a psychological evaluation. Mary was referred to parenting classes and domestic violence classes.

On August 6, 2009, Mary failed to attend scheduled domestic violence training. Both Mary and James attended a hearing the following day, and were ordered to comply with services. On September 28, 2009, at a case management hearing, James and Mary were ordered to provide proof of an address or a lease and comply with psychological and bonding evaluations.

On October 20, 2009, both parents visited with Xena. The caseworker noticed that James was sitting with his eyes closed. He said he did not feel well. He was scheduled to attend substance abuse treatment on November 5, 2009, but no longer attended anger management classes. He then admitted to daily marijuana use. He agreed to submit to a urine screen, and tested positive for marijuana and cocaine.

On October 29, 2009, a domestic violence counselor called the caseworker to report that Mary had completed domestic violence training, but that she had arrived at the counseling center with visible bruises on her body, which she attributed to James. Mary's caseworker and clinician then arranged for her to stay at a shelter for the night. However, on November 5, the caseworker learned that Mary never arrived at the shelter.

On November 10, 2009, Mary came to the Division's office for a visit. She reported that she did not go to the shelter because James told her that he would change. However, Mary then showed the worker several bruises on her arm. According to Mary, the last violent incident occurred on November 9. She explained that Alice was also aware of the violence, and had hit James on occasion. She stated that James was still using drugs.

The Division worker again referred Mary to services and reiterated that the Division's concerns about domestic violence were the reason Xena has not been returned to her care.

On January 8, 2010, James informed the caseworker that he was no longer residing with his mother. He said that he and Mary were living in a motel. Mary confirmed that they were living in a motel as of January 6, but that she did not have any clothes and was running out of money.

In January 2010, Frank J. Dyer, Ph.D., conducted psychological and bonding evaluations of Mary and James. Dyer reported that Mary's "emotional tone was depressive," and that "she projected an air of hopelessness and helplessness." When confronted with the Division's concerns about domestic violence, homelessness, and the danger that this lifestyle presents to a child, Mary replied that she understood "that there are parents who kill their children, rape their children, and burn their children" and her "baby's father was never like that." According to Dyer, "[t]he overall behavioral impression was that of a mentally limited individual who is depressed, dependent, and trapped in a relationship in which she is repeatedly the target of domestic violence." In the bonding portion of the evaluation, it was noted that Mary said extremely little to Xena throughout the entire session.

Dyer concluded that Mary tends to be passive, dependent, lacking in self insight, submissive, and unable to protect her daughter from the harm associated with her violent relationship with [James]. In spite of the fact that [James] has repeatedly assaulted her and threatened to kill her, [Mary] is evidently trapped in a masochistic relationship with him. The situation is very severely compounded by [Mary's] intellectual impairment, which limits her ability to meet the challenges of normal day-to-day living in the community without either a strong partner to take care of her or some other form of supervision and support. [Mary] tends to react to stressful events in her environment by becoming depressed, which further reinforces her sense of hopelessness and helplessness.

Finally, Dyer explained,

The implications of the above psychological profile are negative with respect to parenting capacity. In the first place, [Mary] presents [with] such a great degree of intellectual impairment that this factor alone should disqualify her from being able to care independently for a child. Individuals functioning at this low level intellectually lack the insight, judgment, and capacity for vigilant attention to a child's needs that are essential for safe and nurturing parenting.

When observed with her daughter, [Mary] neglected such basic parenting behaviors as removing the child's winter hat and jacket, even though the office was quite warm. She did not talk to [Xena] very much during the session, and it is clear that she is not equipped to provide the kind of cognitive and language stimulation that a young child needs. [Mary] also did not display very much affection toward [Xena] during the observation.

This subject is simply too limited to be able to grasp the degree of risk that her domestic violence relationship with [James] poses for the child, as well as [Mary]'s sleeping in the streets and in parks with [Xena] when the child was in her custody. She is too limited intellectually and also in terms of basic reading ability to be able to cope independently with normal child rearing tasks such as providing proper nutrition, recognizing symptoms of illness, obtaining medical care, following doctor's instructions whether oral or written, helping the child in school, and a host of other tasks that require at least borderline intellectual ability and some degree of basic literacy. The subject's plan is to raise [Xena] together with [James], which would place the child at significant risk of harm.

Dyer recommended that the Division not consider Mary as an appropriate caretaker for Xena.

Dyer reported that James was "vague and evasive at times, and attempted to deflect the examiner's questions about difficult issues." When questioned about his history of arrests, he reported that he had been arrested six times, beginning at age nineteen for stealing a shirt from a store. He reported that he was incarcerated for three months, and then given a fine and released. His other arrests were also for shoplifting. When asked about his use of drugs, James admitted that he began smoking marijuana at the age of 28 years. He stated that he would smoke one blunt, or hollowed out cigar full of marijuana, every day. He stated that he still smokes marijuana, and that his last use of marijuana occurred 15 days prior to the present examination. [He] stated that he does feel that he has a problem with marijuana. He stated that he would never spend his own money on cocaine, but that if he is at a party, he will use cocaine if it is offered to him. He stated that he does not like cocaine very much, but that he does like marijuana.

Dyer found that James "does not possess any genuine understanding of the problems that led [the Division] to remove his daughter and maintain her in placement outside the home." Dyer noted James's belief that, if he obtained "an adequate job and proper housing, then [the Division] would have no problem returning [Xena] to him and [Mary]." He also denied and minimized his domestic violence assaults on Mary. Dyer concluded:

The implications of the above psychological profile are extremely negative with respect to parenting capacity. [James] continues to use drugs, especially marijuana. This in itself would place his daughter, or any child in his care, at risk of harm. The amount of marijuana that [James] admitted to using on a daily basis would insure that he was at least partially under the influence of the drug for most of the day. Combined with the subject's alcohol abuse, this adds up to a substantial impairment.

This subject's poorly controlled hostility, that seems to be primarily directed against [Mary] in the form of physical aggression, would pose a separate and distinct risk of harm to the child. It is not unusual for young children present in a home where this type of domestic violence [is] occurring to suffer severe injury if one of the parents attempts to use that child as a shield. Even if [Xena] were not to be injured in this way, she would clearly be at very high risk for psychological trauma if she were exposed to repeated scenes of violence between her parents.

Finally, [James] does not have a record of compliance with services. Although he claims to have become more patient as a result of the "school for character" that the Division referred him to, the fact that he is continuing to assault [Mary] indicates that these gains are more intellectual than behavioral. [James] is still a drug abuser and remains at substantial risk for criminal recidivism. The overall picture, therefore, is one of multiple risk factors for physical and psychological harm that this subject continues to present with respect to any child in his care. He also presents a rather dim prospect of correcting any of these risk factors, owing to his poor compliance with services.

Dyer recommended that the Division "not consider [James] as a viable candidate for custody of [Xena]."

Dyer performed a bonding assessment of Xena with her foster parents. He observed that Xena was "appropriately groomed and dressed" and that Xena addressed her foster parents as "Mommy" and "Daddy." Dyer further reported the following:

[Xena] is a nearly two-year-old child who has been in a continuous placement with her foster parents since 6/20/08. She is flourishing developmentally in this placement, and registers average scores in all developmental areas measured by the Vineland-II Adaptive Behavior Scales. This is particularly impressive in light of the low intellectual level of the birth mother. When observed with her foster parents, [Xena] presented as happy, relaxed, secure, and emotionally responsive. Both of the foster parents were very involved with this child during the session, and provided good cognitive and language stimulation. The foster parents are mature and nurturing caretakers to whom this child has understandably formed a profound attachment, given her placement with them during infancy.

When observed with the birth parents, [Xena] was far less responsive. She appeared more focused on the examiner than she was on her birth parents when observed with them separately. She did not make eye contact with her parents and did not interact with them very much. The birth parents did not offer this child much stimulation or affection during their observations with her. This was particularly true of [Mary].

It is clearly the foster parents who are this child's central parental love objects and identification figures. The birth parents, if anything, occupy only a peripheral role in [Xena]'s emotional world. If [Xena] were to be removed from her attachment figures, the foster parents, and placed with either birth parent or with both of them jointly, she would suffer a traumatic loss that would have harmful effects on her.

The most likely impact of such a loss would be impaired self-esteem, impaired basic trust, and an impaired capacity to form new attachments. This child would be placed at risk for personality disorder and depression if she were to suffer the loss of her attachment figures during the critical preschool years. Because of the very severe limitations of the birth parents, even if they did not present a direct risk of physical harm to the child, which they currently do, they would not be able to mitigate the harm done to [Xena] by the traumatic loss of her central parental love objects.

The termination trial was held before a different Family Part judge on February 23 and 25, 2010. Dyer and the caseworker were the only witnesses. James and Mary attended, but did not testify or offer any witnesses on their behalf. On March 11, 2010, Judge Mark J. Nelson issued a written opinion terminating James and Mary's parental rights to Xena. Judge Nelson concluded that the Division had established each of the four prongs required for termination of parental rights under N.J.S.A. 30:4C-15.1 by clear and convincing evidence. He entered a judgment of guardianship terminating parental rights the same day.

This appeal followed.

II.

Mary presents the following issues on appeal:

I. THE TRIAL JUDGE'S DECISION SHOULD BE REVERSED SINCE HE DID NOT FIND ANY HARM [XENA] EXPERIENCED BY MOTHER'S HOMELESSNESS AND DOMESTIC VIOLENCE.

II. TRIAL COURT'S DECISION SHOULD BE REVERSED SINCE IT ERRED IN FINDING THAT DYFS PROVED THROUGH CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP MOTHER, [MARY], CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILD'S PLACEMENT OUTSIDE OF THE HOME.

James presents these issues on appeal:

I. THE ELEMENTS OF N.J.S.A. WERE NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE.

A. [JAMES] DID NOT CAUSE ANY DIRECT OR PHYSICAL HARM TO [XENA].

B. A LACK OF WILLINGNESS OR ABILITY ON THE PART OF [JAMES] TO ELIMINATE THE HARM FACING THE CHILDREN WAS NOT PROVEN BY CLEAR OR CONVINCING EVIDENCE.

C. RELATIVE RESOURCE PLACEMENT WITH THE PATERNAL AUNT REMAINS THE BEST ALTERNATIVE TO TERMINATION OF [JAMES'S] PARENTAL RIGHTS.

D. TERMINATION OF PARENTAL RIGHTS WILL CAUSE MORE HARM THAN GOOD AND A STRONG ATTACHMENT WITH THE FOSTER PARENTS DOES NOT CONSTITUTE PROOF UNDER THE FOURTH PRONG SUFFICIENT TO JUSTIFY TERMINATION OF PARENTAL RIGHTS.

II. THE TRIAL COURT'S FINDINGS ARE MERELY CONCLUSORY AND NOT ENTITLED TO DEFERENCE BY THIS COURT.

The Law Guardian urges affirmance of the Family Part's judgment, as does the Division.

The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). Those findings may not be disturbed unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).

As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293.

In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"

We have held that, "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." J.T., supra, 269 N.J. Super. at 188-89 (citation omitted) (internal quotation marks omitted); see also, N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is still appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).

Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.

Parents have a constitutionally-protected right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. C.M., 202 N.J. 145, 165-66 (2010); E.P., supra, 196 N.J. at 102; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed in the termination of parental rights. K.H.O., supra, 161 N.J. at 347. To balance these constitutional rights against potential harm to the child, when applying for guardianship, the Division must institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the Division to establish its case by a clear and convincing evidence standard. Ibid.; In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); see also P.P., supra, 180 N.J. at 511 ("On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.").

The Supreme Court first articulated the best interests standard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subsequently amended Title 30 in 1991 to conform with the court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). See L. 1991, c. 275, § 7. The statute provides that the Division must prove:

(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 factors are not independent of each other; rather, they are "interrelated and overlapping . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citation omitted), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive" requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (citation and internal quotation marks omitted).

Under the first prong of the best interests standard, the Division must prove by clear and convincing evidence that "[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 . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. "The potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605. The absence of physical abuse or neglect is not conclusive; indeed, serious emotional and developmental injury should be regarded as injury to the child. Ibid. Moreover, trial courts must consider the potential psychological damage that may result from reunification with a parent. Ibid. "[T]he psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.").

Under the second prong of the best interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care, . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This harm includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). The second prong focuses on parental unfitness and overlaps with the proofs supporting the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).

Under the third prong of the best interests standard, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster case. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services essential to achieving reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "coordinated" and must have a "realistic potential" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).

Under the last prong of the best interests standard, the question to be addressed 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. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. A.W., supra, 103 N.J. at 607-09. The mere fact of a bond with the foster parent does not alone justify the termination of parental rights. K.L.F., supra, 129 N.J. at 44-45; N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (App. Div. 2005).

In meeting the fourth prong, the State should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the natural and foster parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "[T]ermination of parental rights likely will not do more harm than good" where the child has bonded with foster parents in a nurturing and safe home. E.P., supra, 196 N.J. at 108 (citations omitted). Yet, "the Division must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).

III.

We now turn to James and Mary's arguments on appeal. James contends that the Division failed to prove each of the four prongs by clear and convincing evidence, while Mary challenges only the findings with respect to the first prong (harm) and the third prong (reasonable efforts). To facilitate our review of the judgment on appeal, we will review each prong separately, noting its application to each parent.

A.

With respect to the requirement that the Division demonstrate that Xena's "safety, health or development has been or will continue to be endangered by the parental relationship," the trial judge reached the following conclusions:

The court finds that both defendants [Mary] and [James] have long standing issues of domestic violence and unstable housing and a failure to deal with those issues. In addition, the court finds that [James] by his own admission to Dr. Dyer . . . has a significant substance abuse problem. The child has already been harmed and will continue to be at risk of harm as a result of her parents continued engagement in domestic violence and their inability or unwillingness to find stable housing and by [James's] substance abuse.

The court specifically finds that the child, [Xena], was harmed by domestic violence in this matter as she was present at the Burger King in a baby carriage when her father, [James], physically assaulted her mother, [Mary]. [James] did this after consuming 6 to 8 cervezas (beers). [James] also kicked the baby carriage with the child in the carriage on that date. [James], in addition, admitted to caring for the child alone on that date after having consumed 6 to 8 beers. Both parents indicated that they were either homeless or living from place to place or from motel to motel. [Mary] also admitted on that date of the removal that she had stayed in parks or public places with the child who was then 3 months old. The court also specifically finds that [Mary] on the date of removal did not have sufficient food to provide for the child on that date.

Frankly, the court feels for [Mary] in this matter, particularly, in regard to the lack of stable housing and the lack of food.

Housing and food cost money and it is unfortunate and even tragic that [Mary] just did not have the money to obtain housing or to obtain food in June 2008. However, a parent does have an obligation to seek public assistance which apparently [Mary] did not do on her own prior to involvement with the Division. The court specifically finds that [Mary] and [James] engaged in domestic violence in June 2008, and unfortunately, recently engaged in acts of domestic violence in October 2009. [James] continues to use alcohol and illegal substances. All of the above placed (in the past tense) the child at risk of harm and continues to place the child at risk of harm.

Both Mary and James challenge the judge's finding that Xena was harmed by their conduct. Mary argues that there was no evidence that Xena was harmed by James's acts of domestic violence against her, citing New Jersey Division of Youth & Family Services v. F.H., 389 N.J. Super. 576, 610 (App. Div.), certif. denied, 192 N.J. 68 (2007), for the proposition that a court cannot simply assume that a child was harmed by witnessing an act of domestic violence. She further argues that no harm was demonstrated with respect to lack of food or shelter, noting that at times James provided voluntary child support to her. James makes similar arguments, noting that Xena was not in Mary's custody for most of the time at issue. He further argues that there was no evidence demonstrating any harm to Xena from his substance abuse.

The Division does not need to demonstrate that actual serious harm has occurred. It need only establish that the 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) (emphasis added). Because the Legislature has not required the Division to wait until actual harm has occurred, putting the child at substantial risk of harm suffices to satisfy N.J.S.A. 30:4C-15.1(a)(1). "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383 (1999).

The record fully supports the judge's finding that both Mary and James put Xena at substantial risk of harm. There was a history of domestic violence between them, and during one of those events James kicked the stroller holding three-month-old Xena. The record also supports the finding that there were further acts of domestic violence following Xena's removal. The Division was not required to wait until Xena was seriously injured before effectuating the removal.

The record also supports the judge's finding that neither Mary nor James were providing a safe and stable home for Xena, a harm recognized by N.J.S.A. 30:4C-15.1(a)(2). See also D.M.H., supra, 161 N.J. at 378-81, 383. Xena was born in March 2008, and by April Mary had lost her housing and was staying overnight on the street, in parks, and at different motels. She was also routinely spending several hours a day at a Burger King for shelter. The record also demonstrates that Mary's access to regular sources of food for Xena, a very young infant, was precarious. James similarly failed to provide basic housing and support for Xena.

Consequently, we are satisfied that the record supports the trial judge's finding, by clear and convincing evidence, that the Division met its burden to prove the first prong of the best interests test.

B.

With respect to the second prong, proof 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," the judge reached the following conclusion:

As indicated earlier in this opinion, both [Mary] and [James] engaged in domestic violence and were unable or unwilling to maintain stable housing all of which endangered the child. Dr. Frank J. Dyer, PH.D (sic) testified at the trial. It is Dr. Dyer's opinion that neither parent is able to eliminate the harm facing the child, [Xena], and both parents are unable to provide a safe and stable home for the child. Dr. Dyer testified regarding his psychological examination of [Mary] and indicated that he diagnosed her with an Axis I impression of dysthymia and with Axis II impression of mental retardation, mild, personality disorder, NOS, with prominent dependent features. Dr. Dyer testified and the court accepts the doctor's opinion that [Mary] cannot parent the child within a reasonable degree of psychological certainty. The court accepts Dr. Dyer's opinion as credible that [Mary] tends to be passive, dependent, lacking in self insight, submissive and unable to protect her daughter from the harm associated with her violent relationship with [James]. The doctor indicated and the court accepts as credible the opinion that the situation is only compounded by [Mary's] intellectual impairment which limits her ability to meet the challenges of day to day living.

As indicated earlier in this report, [Mary] was again the victim of domestic violence in October 2009 on the very day she was to complete the domestic violence counseling. The court also accepts as credible Dr. Dyer's opinion that [Mary] simply does not have an understanding as to [James's] substance abuse issues and the effects they have on his parenting ability.

While it is unfortunate that [Mary] is impaired intellectually and certainly it is due to no fault of her own, the court must consider that it affects her ability to appropriately parent this child. As Dr. Dyer indicated "[Mary] presents with such a great degree of intellectual impairment that this factor alone should disqualify her from being able to care independently for a child." . . . [Mary] simply lacks the insight, judgment and capacity for vigilant attention to her child's needs. The court also accepts as credible Dr. Dyer's opinion that [Mary] "is simply too limited to be able to grasp the degree of risk that her domestic violence relationship with [James] poses for the child, as well as [Mary] sleeping in the streets and in parks with [Xena] when the child was in her custody."

Simply stated, [Mary] simply does not have the judgment or capacity to provide for this child. It may be no fault of her own, but those facts do exist.

The father, [James], was also examined by Dr. Dyer who made the following diagnosis: "Axis I Cannabis Dependence, questionable remission, cocaine abuse, alcohol dependence; Axis II: Personality Disorder, NOS with Narcissistic, Borderline and Antisocial features." Dr. Dyer indicates in his testimony and in his report . . . that [James] continues to use illegal substances, especially marijuana, in significant amounts. This in itself would place his child [Xena] at risk of harm. However, Dr. Dyer opined and the court accepts as credible his opinion that [James] does not present a genuine understanding of the problems that led to the removal of his daughter. [James] engaged in domestic violence on the date of the removal and engaged in domestic violence with the mother of his child in October 2009. [James] denies and minimizes the domestic violence. Finally, the court accepts as credible Dr. Dyer's testimony that [James] simply is unable to parent at this time as he is an active substance abuser by his own admission, he is an untreated alcohol user which manifests itself in violence against other people, including [Mary], putting [Mary] and the child at risk of harm.

Regarding the delay of permanent placement and whether it would add to the harm, Dr. Dyer testified that permanency is important for a child so that the child may feel safe and develop security and trust in relationships. Dr. Dyer opined and the court accepts as credible that it is not in the best interest of the child, [Xena], to delay permanency. . . . DYFS v. A.W., 103 N.J. 591 (1986).

There was also uncontroverted evidence at the trial that separating the child [Xena] from her resource family would cause serious enduring emotional or psychological harm to the child. This evidence was supplied by the testimony of Dr. Dyer. Dr. Dyer testified and the court finds as credible that [Mary] was not nurturing during the bonding evaluation with the child and was not very involved with the child. Dr. Dyer testified and the court also finds credible that during the bonding evaluation, [James] had little interaction with the child. Dr. Dyer opined and the court finds as credible that the child is not bonded to either of the birth parents. On the other hand, Dr. Dyer opined that the foster parents appear to be mature and nurturing caretakers to whom this child has formed a profound attachment. Based upon Dr. Dyer's testimony, the court finds that it is clearly the foster parents who are the child's central objects of attention. Based upon Dr. Dyer's observations at the bonding evaluation, the court finds that [Xena] would suffer a traumatic loss that would be harmful to her if she were to be removed from her foster parents. As indicated by Dr. Dyer which the court finds credible, the most likely impact of such a loss would be impaired self-esteem, impaired basic trust and an impaired capacity to form new attachments. There was simply no evidence at the bonding evaluation that [Xena] is attached to her parents.

Mary does not specifically contest the judge's conclusions, having argued that there was no proof of harm in the first place. James contends that the judge's findings are not supported by the record. He specifically argues that the judge relied too heavily on Dyer's opinion, and that the judge should not have relied so heavily on the bonding evaluations because of Xena's relative youth and lack of time spent living with her parents.

Neither Mary nor James offered a mental health professional to counter Dyer's opinion. The judge's finding that Dyer was a credible witness is well supported by the record, as are the underlying facts upon which Dyer relied in formulating his opinions with respect to both James and Mary. James simply ignores his failure to address his substance abuse and anger management problems, despite the Division's efforts to supply services to address them.

We agree with the Division that James's reliance on C.M., supra, 202 N.J. 145, is inapposite. The trial judge's decision with respect to James does not turn solely on the amount of time Xena had spent in her foster home. Id. at 169-70. The record in this case reflects that James kicked Xena's stroller during a domestic violence incident, consumed numerous beers while caring for her, failed to provide adequate housing or support, missed many opportunities for parenting time, continued to engage in domestic violence against Mary, and persisted in refusing to address his substance abuse and anger management issues. Unlike the father in C.M., James was not an otherwise fit father who had delayed coming forward to seek custody of his child.

Consequently, we are satisfied that the record supports the trial judge's finding, by clear and convincing evidence, that the Division met its burden to prove the second prong of the best interests test.

C.

With respect to the third prong of the best interests test, whether the Division made reasonable efforts to provide services to the parents and in considering alternatives to termination, the trial judge reached the following conclusions:

The Court finds that the Division has proven by clear and convincing evidence that more than reasonable efforts were undertaken to work with both [Mary] and [James] to correct the circumstances that led to placement of this child. The Court has already detailed the numerous services in this matter. [Mary] was provided with a psychological evaluation by Dr. Iser in order to determine the level and amount of services needed. The Division then made referrals based upon Dr. Iser's recommendations. There was some discussion at the trial that the Division failed to provide services or treatment for [Mary's] mental retardation. It should be noted that Dr. Iser did not make any recommendation for services in that regard.

The Division made referrals for anger management, parenting skills, domestic violence counseling, visitation was provided, bus passes to facilitate visitation were provided, family team meetings were set up and conducted and [James] was referred for substance abuse evaluations and treatment.

As indicated earlier in this opinion, for the most part, [Mary] did in fact comply with the referrals. However, this court cannot find that [Mary] benefited from all of the services. The court is making this finding not just based upon Dr. Dyer's opinions but based upon the fact that on the final day of her domestic violence counseling classes, [Mary] arrived to the class with visible bruises and indicated that she was again assaulted by [James]. This occurred in October 2009. [Mary] and [James] still present themselves as a couple with the intention of parenting the child [Xena], should the child be returned to them. The Division also considered relatives for placement of the child. . . . As such, the court finds by clear and convincing evidence that the Division made reasonable efforts in this matter in regard to both [Mary] and [James].

There simply are no alternatives to termination of parental rights in this matter. The only expert opinion that was submitted and the court accepts by more than clear and convincing evidence is that both parents are unable to provide a safe and stable home for the child and will be unable to do so for the foreseeable future. There is absolutely no evidence to the contrary. Even if we were to put aside [Mary's] intellectual deficits, she continues to reside with a man who abuses her, a man who puts her and a child in her custody at risk of harm. [James] continues to engage in illegal substances and has failed to adequately address his aggressive nature as indicated to the Division that he felt he has changed after attending 3 or 4 classes.

Both Mary and James challenge that determination. Mary argues that the Division did not supply sufficient services and did not make sufficient efforts to ensure that she complied with the services offered. She also disputes the Division's assertion that there was a referral for psychological services. Both Mary and James contend that the Division did not adequately consider placement with relatives.

With respect to Mary, our review of the record satisfies us that the Division made the required efforts to provide services to enable her to resume custody of Xena. Mary participated in some, but not all services. Despite those efforts, Dyer concluded that she was not able to parent Xena and would not be able to do so in the foreseeable future. The record fully supports that conclusion. The record also reflects extensive efforts by the Division to enlist one of Mary's siblings or her adult daughter as an alternative placement, each of whom declined to serve.

We find no merit in James's suggestion that his failure to comply with the Division's services was motivated by his doubts about paternity. First, he did not testify to that effect at the trial. Second, although paternity was not actually confirmed until October 22, 2009, he was engaging in parenting time with Xena as early as July 2008 and promising to provide support as early as June 2008.

James also argues that the Division should have considered his paternal aunt as a relative resource. In fact, James had mentioned his aunt to the caseworker in July 2008, but never followed through on her request that he supply contact information. At the same meeting, the caseworker had explained to James that the Division would consider adoption if Xena could not be reunited with him or Mary within twelve to fifteen months. The aunt did not come forward until January 2010, just before the trial was scheduled to begin in February 2010. By that time, Xena had been with her foster family since June 20, 2008, approximately a year and seven months. James did not offer the aunt as a witness at the trial, nor did he testify to explain why he did not comply with the Division's request for her contact information back in July 2008.*fn5

As noted above, the record reflects significant efforts by the Division to locate a resource relative from among Mary's relatives. The Division offered to consider James's aunt, but was not supplied with her contact information in a timely manner. The Division also explored Mary's sister, Melissa, and her adult daughter, Alice, as relative resource placement options for Xena. Neither of them was willing to participate.

Consequently, we are satisfied that the record supports the trial judge's finding, by clear and convincing evidence, that the Division met its burden to prove the third prong of the best interests test.

D.

The final prong requires the Family Part judge to determine whether "[t]ermination of parental rights will not do more harm than good." With respect to that issue, the trial judge concluded:

As indicated earlier, Dr. Dyer has concluded and the court has accepted that neither parent was capable or is capable of providing a safe and stable home for the child now or in the foreseeable future. Dr. Dyer conducted bonding evaluations between the child and her parents and between the child and the foster parents. The court has already accepted as credible Dr. Dyer's opinion that there is no bond between the child and her birth parents and that there is a profound bond or attachment between the child and her foster parents. Dr. Dyer based his opinion on his observations including the observation that there was little interaction between the child and her birth parents during the bonding evaluation. As indicated, the court has accepted Dr. Dyer's opinion that there would be severe and enduring harm if the relationship between [Xena] and the foster parents were to be terminated. There would be no such loss if the birth parents' parental rights were terminated.

Although Mary does not specifically address this prong, James argues that the judge's findings are conclusory and overly reliant on Dyer's opinions. We disagree. In K.H.O., supra, 161 N.J. at 355, the Supreme Court held that, where the child has been placed in foster care, the necessary inquiry is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." And, the Court specifically held that such an inquiry requires expert opinion concerning the strength of the relationship between the child and the biological and foster parents. Ibid.

Dyer's opinion that Xena would be harmed significantly by removal from her foster parents, but would not be so harmed by the termination of Mary and James's parental rights, is credible, firmly supported by the record, and uncontradicted by contrary expert opinion. Dyer is a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of Xena's relationship with her natural and foster parents. J.C., supra, 129 N.J. at 19.

We are aware that the mere fact of a bond with the foster parent does not alone justify the termination of parental rights. K.L.F., supra, 129 N.J. at 44-45; F.M., supra, 375 N.J. Super. at 263-64. We have already expressed our view that the record supports the judge's conclusions that both of Xena's parents exposed her to a risk of significant harm, that neither of them will be able to parent her in the foreseeable future, and that the Division made reasonable efforts to provide services and explore other family resources. As the Supreme Court held in E.P., supra, 196 N.J. at 108 (citations omitted), "termination of parental rights likely will not do more harm than good" where the child has bonded with foster parents in a nurturing and safe home. Consequently, we conclude that the Division satisfied is burden of proof as to the fourth prong.

Based upon our review of the record, we are satisfied that the trial judge's findings of fact and conclusions of law are fully supported by clear and convincing evidence found in the record and the applicable law. We see no indication that the judge's findings "went so wide of the mark that a mistake must have been made" and they are not entitled to the deference ordinarily paid to them. M.M., supra, 189 N.J. at 279 (citation and internal quotation marks omitted).

Affirmed.


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