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New Jersey Division of Youth and Family Services v. E.L

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 7, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
E.L., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF B.L.,
A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-146-04.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 3, 2011

Before Judges Lisa, Sabatino and Alvarez.

Defendant, E.L., appeals from the May 28, 2008 judgment of guardianship terminating his parental rights to his son, B.L., who was born on March 9, 2000. This is the second time defendant's parental rights have been terminated.

The Division of Youth and Family Services (DYFS or Division) filed a guardianship complaint on November 24, 2003, seeking to terminate the parental rights of defendant and B.L.'s mother, R.L. A trial resulted in an April 27, 2005 judgment of guardianship terminating the rights of both parents. They appealed, and on September 12, 2006, we affirmed as to R.L., but reversed and remanded regarding defendant. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).

Judge John J. Callahan presided over the second trial,*fn1 which began on October 29, 2007. After five days of trial, the judge issued a comprehensive oral decision on December 5, 2007. He held that DYFS had satisfied the first prong of the best interests test. However, he declined to make a final determination as to prongs two, three and four, leaving the matter open for further review after a reasonable time for defendant to engage in therapeutic visitation with B.L. Trial resumed on April 23, 2008. After several additional days of trial, Judge Callahan issued another comprehensive oral decision on May 28, 2008. He found that the remaining prongs had been satisfied and entered a judgment of guardianship terminating defendant's parental rights.

On appeal, defendant argues:

POINT I:

THE TRIAL COURT'S DETERMINATION OF THE ULTIMATE FINDINGS SHOULD BE REVIEWED DE NOVO AND THE TRIAL COURT'S DECISION TO TERMINATE PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE TRIAL COURT INCORRECTLY INTERPRETED THE STATUTORY REQUIREMENTS NECESSARY FOR TERMINATION OF PARENTAL RIGHTS.

POINT II: THE TRIAL COURT COMMITTED EVERSABLE [SIC] ERROR WHEN IT REVERSED THE DECISION OF THE APPELLATE COURT AS IT RELATED TO THE APPELLATE COURT'S FACTUAL AND LEGAL CONCLUSIONS IN THIS CASE THIS WAS A CLEAR VIOLATION OF THE LAW OF THE CASE.

POINT III:

A. THE EVIDENCE CLEARLY SHOWED THAT THE INJURIES THAT WERE SUFFERED BY B.L. WAS AS A RESULT OF THE ACTIONS OF HIS MOTHER R.L., THE OVERWHELMING WEIGHT OF THE CLEAR AND UNBIASED EVIDENCE SHOWS THAT E.L. WAS NOT RESPONSIBLE FOR THOSE INJURIES BUT WAS A CONCERNED FATHER WHO SOUGHT TO COMFORT HIS SON EMOTIONALLY AND PROTECT HIS SON AND ALSO THAT EMOTIONAL DIFFICULTY SUFFERED BY B.L. WHILE HE WAS IN FOSTER CARE WAS DIRECTLY ATTRIBUTABLE TO HIS FORCED SEP[A]RATION FROM HIS FATHER AND HIS GRIEF OVER THE LOSS OF HIS BELOVED FATHER.

B. THE TRIAL COURT INCORRECTLY DETERMINED THAT E.L. WAS UNABLE OR UNWILLING TO ELIMINATE THE HARM FACING B.L. AND UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR HIM AND THAT A DELAY IN PERMANENT PLACEMENT WILL ADD TO THE HARM.

C. THE TRIAL COURT INCORRECTLY DETERMINED THAT THE DIVISION HAD MADE REASONABLE EFFORTS TO REUNIFY E.L. AND B.L.

D. THE TRIAL COURT['S] LEGAL DETERMINATION THAT THE PERMANENT TERMINATION OF B.L.'S RELATIONSHIP WITH HIS FATHER WOULD NOT DO MORE HARM THAN GOOD WAS NOT JUSTIFIED WHEN BALANCED AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE SHOWING THE CHILD'S PROFOUND AFFECTION FOR HIS FATHER AND THE DEVASTATING EFFECT THAT THE IMPROVIDENT SEPARATION OF THE CHILD FROM HIS FATHER WAS ON THE CHILD'S EMOTIONAL DEVELOPMENT AS EVIDENT BY THE CHILD'S SMEARING OF FECES OVER HIMSELF WHEN PLACED IN FOSTER CARE, THE CHILD'S CONSTANT TALK ABOUT HIS FATHER, AND THE CHILD WA[]KING UP IN THE MIDDLE OF THE NIGHT GRIEVING FOR THE LOSS OF HIS FATHER.

We find these arguments unpersuasive. The Law Guardian urged the trial court during the remand proceedings to terminate defendant's rights, and on appeal, the Law Guardian joins the Division in urging us to affirm the termination. We agree with the Law Guardian and the Division and affirm.

I

The facts regarding B.L.'s removal from his parents' care are set forth in detail in our previous opinion, and we need not repeat them here. We now set forth the relevant facts regarding events that have occurred since that opinion.

In our prior opinion, we held that DYFS had not satisfied prongs one, two or four of N.J.S.A. 30:4C-15.1(a) as to defendant. R.L., supra, 388 N.J. Super. at 102. Citing Division of Youth & Family Services v. M.M., 382 N.J. Super. 264, 282 (App. Div. 2006), rev'd, 189 N.J. 261 (2007), we noted that the fact that defendant believed that his wife did not deliberately injure B.L. "does not in itself indicate an inability or unwillingness to protect B.L." R.L., supra, 388 N.J. Super. at 102. While defendant's hostility toward DYFS and hospital personnel was "also of concern," it did not relate to his ability to parent B.L., "provided there can be some reasonable assurance that he would abide by restrictions placed upon him by the court as to contact with R.L." Ibid. The record revealed that during the six-month period that defendant was sole custodian of B.L., "the child received proper care." Ibid. We had "no doubt that but for the incidents in early July [2003], during which B.L. spent a weekend with R.L., this action would have been concluded three years ago with the child living with his father on a permanent basis." Ibid.

We reversed the order terminating defendant's parental rights, and ordered the following:

There has been no contact between E.L. and B.L. since June 7, 2005, when visitation was terminated. There can be no question that things have changed. In a footnote to its brief, the Division states that B.L. has been living with the same foster family since that time and that he is bonded to them. Of course, that is subject to investigation including a bonding evaluation of the foster parents, which has never been done. E.L.'s present circumstances and ability to parent his son also needs to be reassessed as well as his amenability to accept assistance from DYFS and adhere to all orders of the Family Part judge. An updated psychological evaluation of E.L. and also B.L. should be considered. Therefore, we reverse and remand the matter to the Family Part for proceedings in accordance with this opinion. We do not reserve jurisdiction. [Id. at 102-03.]

A.

After the remand, Dr. Joel Federbush, a psychiatrist, evaluated B.L. at DYFS's request to determine whether visits between B.L. and defendant were in B.L.'s best interests. On June 7, 2005, before we issued our prior opinion, the trial court had ordered visitation between B.L. and defendant to cease. In his December 6, 2006 report, Federbush noted that B.L. was happy, well-adjusted, and appeared to be thriving in his foster home. When asked if he would want to be with defendant, B.L. replied "no - I like it here. This is my family." Federbush recommended that defendant be evaluated by a mental health professional prior to any interaction with his son, and that B.L. continue with psychotherapy to address his emotional, academic and behavioral issues.

DYFS hired psychologist Alice Nadelman to conduct a psychological evaluation of defendant. She met with him alone on December 18, 2006, and with him and B.L. on December 22, 2006. In her January 20, 2007 report, she noted that defendant was cooperative, said he was very happy to see his son and wanted to regain custody, and knew that B.L. would be happy to see him and would want to return to live with him. He said B.L. knew that his foster parents were not his real parents and he was waiting for his father to come for him.

Defendant said they should bring B.L. to court and let him choose where he wanted to be. He did not think that asking a six-year old to choose would be too much pressure. His plan was to regain custody of B.L. as soon as possible. He had a girlfriend, and they were planning to move to a new apartment together. He "seemed surprised" that his girlfriend would have to be seen by DYFS if she were going to become a caregiver for B.L.

Defendant agreed that during his first visit with B.L., he would bring food and gifts as he did at prior visits. He would not ask B.L. to live with him and would not pressure him for physical affection. However, Nadelman noted that "it was difficult for [defendant] to stick to this plan."

Before the visit, Nadelman met alone with B.L. and his foster mother. His foster mother reported that B.L. was glad to have a visit with his father but wanted to stay with his foster family. B.L. asked if his foster mother could stay during the visit, but she explained that it was a special time for him and his father and that she would be outside in the waiting room.

During the visit, B.L. held himself back shyly when defendant hugged and kissed him. Several times, B.L. stated that he wanted to stay with his "mommy." Defendant seemed to think B.L. was referring to his biological mother, and said he would see his mommy next week. Nadelman intervened and said it was important to explain things correctly to B.L. and that he would not see R.L. next week. B.L. pointed to the waiting room and said he wanted to stay with "this Mommy." Defendant then asked B.L. if he wanted to go home with him. Nadelman again intervened, saying that defendant had agreed not to ask B.L. those kinds of questions.

B.L. asked to go see his foster mother in the waiting room. Nadelman explained to defendant that it was very difficult for both him and B.L. because B.L. knew that what he wanted was not the same as what defendant wanted. Defendant asked to have the foster mother come into the room so they could talk. B.L. ran to her, and again said that he wanted to stay with her. Defendant said that was okay and that they would have more visits.

Nadelman concluded that it was a positive reunion after eighteen months of no contact. B.L.'s behavior was consistent with his foster mother's report that he was willing to visit with his father but did not want to leave his foster family. Nadelman credited defendant with trying to understand B.L.'s feelings and to comfort him. However, his statements that he would like to take B.L. back to live with him, and that B.L. would see his biological mother, R.L., upset B.L., who became more distant and stiff.

Nadelman recommended that the visits between defendant and B.L. continue with DYFS supervision. She also recommended counseling for defendant on how to interact with B.L. in a positive and age-appropriate manner, as well as assist him in how to talk to B.L. about the current situation. Nadelman also noted that if full psychological evaluations were needed to make a permanent plan for B.L., they should be completed expeditiously because B.L. was "already anxious and upset about the prospect of leaving his foster family and continued uncertainty will only exacerbate his anxieties and likely cause behavioral problems."

Nadelman also performed psychological and bonding evaluations, which we will discuss later.

Therapy continued for B.L. through Children's Aid & Family Services, Inc. In a November 2006 report, his therapist, Denise Venitelli, reported that B.L. was happy and well-adjusted, and appeared to be thriving in his foster home. She noted that while he had difficulty paying attention and continued to engage in attention-seeking behaviors, he had been better able to use his words in order to express his anger and frustration. B.L. continued to process his anger, sadness and loss with regard to the separation from defendant. He had been able to process his bad dreams through play, and there had been a reduction in his nightmares.

B.L. was assigned a new therapist, Michelle Shoback, on January 2, 2007. In her January 23, 2007 report, Shoback noted that B.L. had had two supervised visits with defendant, and that he had cried at each visit but was able to be calmed down. B.L.'s foster family reported that B.L. was feeling torn loyalty between defendant and his foster family. This created anxiety, which was exhibited through B.L. starting to bite his nails soon after the visits began. His foster mother reported that his behavior had improved, and he no longer threatened to harm himself when angry, but he would "stomp, slam the door or threaten to go live with his dad." B.L. was reluctant to participate in counseling with his new therapist initially, but with support from his foster mother, he participated in the sessions and reviewed his life book.

In a July 26, 2007 report, Shoback noted that B.L. continued to visit with defendant bi-monthly. B.L. sometimes stated that he did not wish to visit his dad because it meant he would have to leave school or camp early. Self-esteem issues were evident, and his play reflected some anger.

Following our remand, the case was assigned to a new caseworker, Krista Mellito. She visited monthly with B.L. at his foster home, and also supervised the bi-monthly visitation between B.L. and defendant. E.L. consistently attended visitation. B.L. repeatedly told Mellito that he wanted to live with his foster family. However, he also said that he liked visiting with his father, and at one point cried after a visit had ended, saying "I do not want to leave my birth father."

After the visit where B.L. cried about leaving defendant, the foster mother stated that B.L. had not wanted to visit with his father and that she did not know why B.L. cried. She felt defendant, who had brought B.L. several toys, was "buying" B.L.'s love. On another occasion, Mellito asked B.L. how he had liked visiting with his father that day, and B.L. said he had fun playing basketball with him. However, the foster mother said B.L. had told her that morning he did not want to visit with his father any more, but he did not want to hurt his feelings. On May 24, 2007, the foster mother reported that B.L. had started to wet the bed again, had nightmares, and was biting his nails.

Mellito observed that B.L. showed affection toward his father during the visits. On January 25, 2007, they "gave each other a hug." On February 8, 2007, B.L. "laughed and gave hugs to his father" while they played basketball.

Mellito did report several concerns during various visits. On May 24, 2007, defendant brought B.L. a water gun but kept saying "It is mine not yours." B.L. got upset, and Mellito asked defendant why he would bring in a toy and not let B.L. have it. Defendant replied he was "just joking."

Defendant then used his phone to call B.L.'s brother in Ghana. B.L. talked to his brother, and then gave defendant the phone and sat in his chair while defendant talked. Mellito asked defendant to hang up the phone and engage with B.L. Defendant continued to talk on the phone for another five minutes. Mellito told him that next time cell phones would not be allowed because the visits were strictly for him and B.L., but left the issue alone because defendant did not seem to understand what she was talking about. Defendant and B.L. then sat at the table in silence while eating.

During a June 20, 2007 visit, defendant and B.L. were playing basketball. B.L. was laughing with defendant, but defendant kept telling B.L. he was cheating because he was not by the wall. B.L. moved closer to the basket so he could make the shot. Later in the visit, defendant became very angry with Mellito because she had never told him that B.L. was graduating from first grade the next day.

On a July 17, 2007 visit, defendant arrived late and appeared to be angry. He said "hi" to B.L. and then watched him eat in silence. However, after B.L. ate, the two played basketball.

During an October 9, 2007 visit, B.L. wanted to play with a truck but defendant kept saying "I am not playing with you because you lied to me today." When Mellito asked what B.L. lied about, defendant said that B.L. had said the day before that he would bring a book so they could read together during the visit. B.L. said the book was in his bag, but he wanted to play and not to read. Mellito suggested they play instead of reading, and defendant said that was fine but that B.L. "still lied to me."

Mellito also reported that on June 20, 2007, R.L. came by the DYFS office and dropped off a foster care application. R.L. said she filled out the application because she wanted to adopt her son, B.L. Mellito told her that she cannot adopt her own biological son.

At trial, Mellito testified that the foster mother waited outside during the visits because B.L. wanted to make sure he was going home with her. Mellito also reported that the foster parents want to adopt B.L., and agreed to maintain contact with defendant.

In March 2007, DYFS referred defendant for counseling at Family Connections. In a May 22, 2007 update, his counselor, Alissa Feldman, reported that defendant was "friendly and cooperative" and had attended all scheduled appointments. However, he stated he was doing so "solely in the interest of regaining custody of" B.L., and was "unable to identify any personal issues or treatment goals to be addressed in therapy." Feldman recommended referring defendant to a parenting class, as that might be more beneficial in meeting his needs. At trial, his DYFS caseworker testified that she discussed the parenting class referral with defendant, but did not make the referral because he stated that he had already completed the classes.

Feldman provided updated reports on July 12, 2007, and October 10, 2007. As of October 2007, defendant had attended fifteen of eighteen scheduled appointments. He continued to be "compliant and cooperative." He was more engaged and trusting of Feldman, which had allowed him to more openly discuss his history with DYFS and the current court involvement. She concluded that he would benefit from continued therapy. If reunification was under consideration, the Reunity House Program might be an appropriate service to offer defendant and B.L.

Nadelman performed a psychological evaluation of defendant, and bonding evaluations of defendant and B.L., and B.L. and his foster family. She provided a written report and testified at trial.

Nadelman performed her evaluation of defendant after meeting with him for eight hours over four visits, from December 2006 through March 2007. He presented as a concerned father who still believed that B.L.'s multiple injuries as an infant were caused by the hospital or a DYFS conspiracy against him and R.L. Defendant did not protect B.L. when he was in his care four years earlier, and he did not indicate that he had learned how to protect his son or how to recognize potential danger.

For example, he refused to discuss B.L.'s repeated fractures, then blurted out, "DYFS is responsible." Nadelman opined that he could not be considered a safe caregiver for B.L. unless he was willing to provide a logical explanation for how B.L. was hurt in his care, and to develop a plan to protect him in the future.

When asked what he would do if B.L. told him that defendant's girlfriend had hurt him, defendant responded "that would never happen." This statement reflected the same position he took in regard to his wife. Thus, there was no indication that defendant had remediated the problems of denial, disbelief and lack of protection that resulted in B.L.'s injuries. Also, during the bonding evaluation, which we will later discuss, defendant's harsh and critical treatment of B.L. was frightening to B.L. and reflected defendant's lack of understanding of his son's needs.

Defendant also continued to believe that B.L. would have little negative reaction to leaving his foster family of two and a half years, despite B.L. explicitly stating that he wished to remain with them. This also reflected a lack of understanding of his son's needs and feelings. He viewed B.L. as being what he, as a father, wanted his son to be - obedient, loyal, and wanting whatever his father wants - rather than a separate individual with his own feelings. He did not demonstrate the capacity to help B.L. with the grieving process, and would likely be impatient or angry with B.L. if he were to show sadness about leaving his foster family. Thus, Nadelman concluded that defendant did not demonstrate the capacity to become a competent or safe caregiver for his son.

Nadelman also performed a bonding evaluation of defendant and B.L. on March 8, 2007. B.L. arrived and began eating the food brought by his father in silence. When he finished eating, he got up to play and took out some bowling pins. Defendant helped B.L. set up the game, and watched him roll the ball and knock down several pins. Defendant repeatedly told him not to cheat and to stand farther back from the pins. There was no conversation or laughing during the game.

Later, defendant quizzed B.L. on various items in a book. Nadelman characterized this interaction as having "little pleasure between them and significant tension as [B.L.] struggled to figure out the correct answers." Nadelman observed that "[o]nly when [defendant] tickeled or rough-housed with [B.L.] did they seem to be having fun, but [defendant] seemed to prefer structured activities."

Defendant frightened B.L. when he referred to the head of a Barbie doll as B.L.'s girlfriend, and said "see, you broke the neck of your girlfriend . . . . They're going to charge you with murder!" B.L. looked frightened, until defendant started laughing. Later in the visit, after B.L. had been playing on the floor, defendant criticized his dirty pants in a loud voice, and B.L. "seemed near tears." After defendant left the room, Nadelman noted that B.L. had no reaction to his father leaving the room, and said he did not want to go look for him.

In comparing their interactions with the first visit she had observed in December 2006, Nadelman found there were few indications of developing closeness and attachment. Instead, defendant "commanded affection, directed rather than interacted and criticized frequently." They displayed little spontaneous pleasure in being together. B.L. did not look to defendant "for fun, help or comfort." Defendant was critical of B.L., instead of being supportive or encouraging, and did not seem to notice this was upsetting to B.L. Nadelman noted that one improvement from the first visit was that defendant did not overwhelm B.L. with physical affection.

Nadelman also observed B.L. with his foster family. She found that there "were many indications of attachment, closeness and trust between [B.L.] and his foster family." He was "strikingly different" with them from when he had been with defendant. He was "relaxed, spontaneous, outgoing and talkative, in contrast to his tense, silent and stiff demeanor with his father." His foster parents gave him directions "gently but clearly" and B.L. followed them. There was spontaneous affection, mostly initiated by B.L.

Nadelman concluded that B.L. "had clearly become an integral part of his foster family." B.L. had spent the first three years of his life moving between his parents' home, hospitals, relatives' homes and foster homes, and this was "the first real stability and safety he has known." Thus, it was healthy for B.L. to want to remain with his foster family, "the only family in which he has been safe, protected and nurtured."

On October 11, 2007, Nadelman prepared an updated report of psychological evaluations. Defendant reported to her that he was still seeing his girlfriend, but they no longer planned to move in together. It appeared that she would have less of a role in B.L.'s life than defendant originally intended. Defendant was still driving a truck and working at night. However, his plan was to change his shift to days once B.L. came to live with him. On days when there was no school or if B.L. were sick, he would take off from work or have friends or relatives care for B.L. He had many friends and relatives who could help, including a niece in Roselle and a cousin in Maplewood. He probably would not work every Saturday, but when he did, there would be enough people to take care of B.L.

Nadelman noted that defendant had no plan to ensure B.L.'s safety, implying that as long as B.L. was with an adult he would be alright. He continued to view B.L. as wanting whatever defendant wanted, with little understanding that B.L. might not feel safe with strangers just as he is getting used to his father and mourning his foster family.

Nadelman again observed B.L. with defendant. It had been six months since her last observation, and Nadelman noted that the interaction between the two was better than last observed. However, "there were few indications of developing closeness or attachment." B.L. again did not look to his father for fun, help or comfort, and did not seek or offer affection. He seemed to try to do what he was told to avoid being reprimanded. He was more spontaneous, but still quiet, serious and dutiful. While B.L. was more willing to disagree with his father whenever he realized his father was teasing, he "clearly did not enjoy his father's repeated teasing, especially when being called a baby and a liar." Nadelman felt that the teasing "bordered on being mean and produced no mutual pleasure."

In Nadelman's view "it seemed clear that neither father nor son could have tolerated much more than an hour of this kind of interaction," and that B.L. seemed relieved when the visit was over. B.L. did not approach his father to say goodbye, but called it out as he approached his foster mother. He only hugged his father when asked to do so. However, defendant did not overwhelm B.L. with physical affection, and "requested a hug rather than commanding it."

Nadelman also observed B.L. with his foster family. Similar to her previous evaluation, she found many indications of attachment, closeness and trust between them.

At trial, Nadelman testified that there would be no serious and enduring harm if defendant was removed from B.L.'s life. There was consistency in data used by her and by defendant's expert, Dr. Matthew Johnson. However, the difference was what each concluded from that data. Nadelman felt there were indications of healing and attachment to the foster parents. Nadelman pointed to a statement made by B.L. when he was mad at his foster parents that he would leave and go see his father, as indicative of B.L. feeling safe with his foster parents. If B.L. returned to his father, there would be significant regression.

Johnson performed psychological evaluations for defendant. In an October 30, 2007 report, Johnson concluded that defendant carried out his parental responsibilities in an appropriate manner. He attended visits routinely, interacted well with his son, engaged in age-appropriate recreational activities that B.L. enjoyed, and did not abandon his parental role by reminding B.L. of rules and to play fair. He expressed affection unambiguously to B.L., and made efforts to connect B.L. to extended family. Interviews with defendant regarding his parenting approach revealed he was knowledgeable about the use of appropriate alternatives to corporal punishment and the importance of modeling in guiding the behavior of children.

Johnson found no signs of depression or anxiety in defendant. He found that the results of the AAPI parenting assessment were suggestive of potential risks. Defendant produced below-average scores on four of the five subtests: lack of empathy; reliance on corporal punishment; parent-child role reversal; and intolerance of children's independence. Examples of responses defendant gave that contributed to his low scores were that "children should know what their parents need without being told", "children have a responsibility to please their parents", and "children should be responsible for the well-being of their parents." However, defendant's native culture placed more emphasis on family obligation and responsibility, and "there were no appropriate norms for evaluating someone from [defendant]'s cultural background (where attitudes about family independence and autonomy are quite different)."

Also, the record of the good relationship with his son and observations of the two during visits indicated that defendant was "a quite capable parent." In restoring his presence in his son's life, defendant had to overcome limited and restricted visitation and DYFS's failure to keep him informed regarding major developments in B.L.'s life. Johnson felt that defendant had been successful in spite of these obstacles, and while adhering to court orders and DYFS mandates.

Johnson noted that the issue of B.L.'s bonding to his foster parents and his father was an important consideration. At the time of the initial guardianship hearing in March 2005, B.L. had a strong positive bond to his father. There was clear evidence that B.L. was "profoundly distressed" by his removal from his father in July 2003. The bond between B.L. and his foster parents was related to both the court-imposed separation from his father and the affection and care he received in the foster home. However, the bond he had developed with the foster parents did not eradicate his bond with his father, as children have the capacity to develop bonds with multiple parental figures.

Johnson acknowledged that B.L. had developed substantial ties to his foster family. However, Johnson said that loss of the relationship "would not inherently result in harm. If the foster parents honor the court decision, express their confidence in [defendant], wish [B.L.] the best, and promise to stay in touch with him while respecting [defendant]'s parental authority, the reunification can be an adjustment without harm . . . ." However, this would also require defendant to be sensitive to B.L.'s positive feelings and attachment to the foster family, and to honor the foster parents' role in providing care to B.L. for the past few years. Unfortunately, the way the family court litigation had proceeded did not promote contact, goodwill and cooperation between defendant and the foster parents, and instead had cast them as adversaries.

Johnson believed that defendant was a fit parent who did not present a risk of harm to his son. Removing B.L. from his foster parents and placing him with his father "is not likely to result in harm and the prospect of serious and enduring [sic] is quite remote."

At trial, Johnson testified that defendant understood the risk that R.L. posed to B.L. He knew there were issues with R.L., and took those risks into consideration. There were two primary risks to B.L.'s safety: the relationship with his mother, and his young age when the previous injuries occurred. Defendant posed no safety risk to B.L. because he had severed the relationship with R.L., and because B.L. was no longer an infant. Also, defendant was not at special risk of being in a relationship with someone that would harm B.L.

When questioned about defendant's statement that he did not believe R.L. had harmed B.L., Johnson testified that defendant trusted his wife and believed he would protect the child in the future. Johnson believed defendant was sincere in those beliefs. Because he was sincere, Johnson felt defendant was a fit parent.

Johnson testified that the visitation between defendant and B.L. was not adequate to maintain their bond. He also questioned the idea of "separational harm," i.e., the idea that a child would be harmed by the loss of a relationship with a caregiver. Instead, one must look at the context in which separation occurs. While B.L. has an attachment to his foster parents, might miss them and be distressed by the move, whether there would be harm depends upon how the transition is handled. If the foster parents were supportive of B.L. going to live with his father, and defendant honored the role the foster parents played in B.L.'s life, there was not likely to be harm to B.L.

Defendant testified. He contended that no one from DYFS had ever visited his home, nor had DYFS offered any services to assist him in understanding the problems with R.L. He said DYFS never provided him any medical documents regarding his son's injuries, and he was never allowed to get a second opinion on what happened to B.L. If B.L. were returned to his care, he said he would not allow R.L. to have unsupervised visits with him. Since the remand, he said no one from DYFS had discussed a case plan with him or discussed B.L.'s issues.

When discussing the 2003 incident in which he allowed R.L. to take B.L., he stated that she showed him what he believed to be a court order, and that he would not allow R.L. to trick him like that again. However, he later testified that he did not call DYFS when R.L. took B.L. from him, and instead waited for a court hearing scheduled for a few days later. He had last seen R.L. about seven months prior, and did not know where she lived.

When questioned about the previous judge's finding that R.L. had caused B.L.'s injuries, defendant testified that he did not know whether he agreed with that finding because no one showed him the medical records. He did not know whether DYFS or the doctors had falsified the medical records.

Defendant acknowledged another occasion when he permitted R.L. to have unsupervised contact with B.L. in 2003. He went to pick up B.L. from the babysitter, but there was no answer when he rang the doorbell. He returned the next morning, and there was still no answer. He then went to where R.L. lived, and found B.L. there with her. Eventually, a DYFS caseworker came, removed B.L. from R.L.'s care, and returned him to defendant. (At the 2005 trial, defendant testified that he had left B.L. in R.L.'s care for three days and sent all of B.L.'s things to her.)

Defendant testified that he worked from six in the evening until between two and six in the morning. He said his family would help him with childcare, and specifically mentioned his niece, Grace, who worked during the day but was home at night. He would drop B.L. at Grace's house when he worked. He could change his work hours if he could not find someone to watch B.L. at night.

B.

Judge Callahan issued an oral opinion on December 5, 2007. He first reviewed the factual findings in our previous decision. He independently examined the record, and found that DYFS had proven the first prong of the best interests test (B.L.'s health and development had been harmed by the parental relationship) by clear and convincing evidence. This prong was met by defendant's attempt to remove B.L. from the hospital against medical advice on February 17, 2001, his reluctance to permit further professional evaluations in August 2001, his avoidance of R.L.'s involvement with and the extent of B.L.'s multiple injuries, his continued use of an unapproved daycare provider in 2003, and the two instances when he allowed R.L. to take B.L. in spite of court orders.

In our opinion, we had held that DYFS had not proven prongs (1), (2), and (4) of N.J.S.A. 30:4C-15.1(a) as to defendant, and we therefore reversed the termination as to him. On remand, Judge Callahan said:

I recognize the Appellate Panel concluded earlier in their opinion as I indicated that the plaintiff had not satisfied the first, second and fourth prongs of the statute in question, Title 34C-15.1. I politely questioned from their own rendition of findings in the history that they provided in their opinion that the first prong would seem to have been proven.

And I am satisfied that it has been by my independent review.

Our remand instructions directed the trial court to examine defendant's ability to parent his son, to accept assistance from DYFS, and to adhere to all orders of the Family Part judge. As to his ability to accept assistance from DYFS and to adhere to all court orders, Judge Callahan noted that since 2006, defendant had responded properly to each request made by DYFS and followed all orders issued by the Family Part judge.

As to his ability to parent, Judge Callahan noted that there were several references in the record recommending that defendant participate in therapeutic visitation. Such visitation involves a parent visiting with his or her child for an hour, followed immediately by a meeting with an observer who offers specific observations and recommendations to help the parent be more effective in parenting the child. Such a program had never been implemented.

While the record reflected "a number of serious difficulties . . . in [defendant's] parenting style," the court also acknowledged the "serious underlying cultural background that is presented in this case." Judge Callahan concluded that the question of defendant's ability to parent could be answered more fully if he engaged in therapeutic visitation with a therapist equipped to deal with the cultural issues. He thus found that DYFS had failed to meet its burden under the third prong of N.J.S.A. 30:4C-15.1(a), and held in abeyance his analysis of prongs two and four (whether defendant is able to eliminate the harm facing the child and provide a safe and stable home, and whether termination of parental rights will not do more harm than good) "until a better resolution is obtained under the third prong."

Acknowledging that "time is critical" given the "extensive period of time" the case had taken, the judge ordered ten weeks of the therapeutic visitation sessions. The therapist was to provide the court with detailed reports, and Nadelman and Johnson were to have the opportunity to observe any of the sessions. The judge also ordered defendant to provide, by January 14, 2008, a specific plan "as to those individuals who are able and willing to provide daily and emergency care for [B.L.]," and ordered DYFS and the Law Guardian to conduct investigations into the appropriateness of defendant's plan.

C.

The judge referred defendant to Reunity House, a therapeutic supervised visitation program that provided services to families who have been separated due to abuse and neglect, with the goal of reunification. Jennifer Kerr, the manager of Reunity House, testified that they usually had a year or more to work with families to meet their treatment goals. It was her understanding that DYFS referred defendant for therapy because defendant's culture was not taken into account for past services. She referred the case to Desiree Mitchell, who supervised all visitation between defendant and B.L. Mitchell testified that initially she was "unsure" about taking the case because the main focus of the Reunity House program was reunification, and the DYFS caseworker told her there would be a trial in three months. Normally, parents and children are in the program for six months to one year.

Weekly therapeutic visitation began in January 2008. Initially B.L. was hesitant. However, by the second visit B.L. complained that the one-hour visit was too short. Defendant engaged B.L. appropriately, playing, talking and working on homework with him. Mitchell described the visits as "great." Defendant was on time and always prepared a lunch for B.L., and they had a routine. At the end of the visits, B.L. embraced defendant without hesitation, and there were no indications that he felt uncomfortable with his father. Mitchell also gave defendant suggestions on communicating with B.L., and defendant immediately implemented those suggestions.

In late February, visitation was increased to twice per week. Under a normal Reunity House plan, the next phase would be an overnight visit at Reunity House. After reunification, Mitchell would follow the case for one year.

Nadelman performed updated psychological and bonding assessments of defendant, B.L., and the foster parents in April 2008. She met with B.L. individually in the DYFS office on April 9, 2008. B.L. was open and cooperative with the assessment, but was distractible and easily lost focus. He said he had been worried about what was going to happen to him and where he would live, and said it was getting harder for him to pay attention in school. Nadelman concluded that B.L. was exhibiting clear signs of stress-related symptoms in response to waiting for a decision about where he would live.

B.L. identified his family members as his foster mother, foster father, and foster sister. He identified his birth parents by name, but said that he did not live with them. He described the visits with his father as "good," and said that they play a lot at visits. He said that his father did not like his hair growing long and gave him money to get a haircut, and that this "didn't hurt my feelings all the way, just a little bit." His foster mother subsequently told Nadelman that B.L. returned from that visit and sobbed that his father did not like his hair and thought he was ugly. When Nadelman met with B.L. and defendant, defendant reported that B.L. wanted to get a haircut and he did not tell B.L. to get it cut. B.L. "immediately said he did want to get a hair cut, despite having told this examiner and his foster mother that he did not want to do so."

B.L. reported that he did not like having so many visits with his father. His father "always chooses and acts like he is in charge." When Nadelman said that dads are in charge of their children, B.L. responded that he does not want that dad to be in charge of him, and he wanted to live with his foster family. He loves his foster family "very much," and he loves his dad "a little bit and would visit him some times but not so much."

Nadelman also observed B.L. at home with his foster family. B.L. was "relaxed, spontaneous, outgoing and talkative with his foster family." There was spontaneous affection between B.L. and his foster parents. Out of B.L.'s presence, his foster mother reported that he was becoming worried and preoccupied at home and at school. He was having trouble sleeping and complained of bad dreams.

Nadelman interviewed defendant on April 14, 2008. He was still driving the night shift, and again offered his girlfriend Veronica as a caregiver for B.L., stating she would stay with B.L. when she got off of work around 5 p.m. When asked about R.L., defendant said he had contact with her several months earlier when they were in court for their divorce case. He did not know how to contact her, and did not explain how they had gotten in contact to arrange to meet at court. He did not know if she wanted to see B.L. because they did not discuss him when they met. Nadelman concluded that it did not seem credible that they would not discuss B.L., and raised concerns about the role she might have in B.L.'s life if he were returned to his father.

Nadelman observed defendant with B.L. at Reunity House on April 14, 2008. The visit was "more positive and mutually enjoyable than any prior observed visit." Defendant was more patient, supportive and encouraging of B.L., and B.L. was more comfortable and spontaneous with his father. Defendant did not tease, ridicule or tickle B.L. B.L. looked to his father for fun and assistance, but not for comfort. He initiated and responded to affection and was playful with defendant. While doing homework, he was serious and obedient and seemed intimidated by his father. B.L. seemed to enjoy the time with his father, and in contrast to previous visits, did not seem relieved when the visit ended.

B.L. only showed visible distress when his father became loud and agitated about not wanting to discuss the judge's upcoming decision. B.L. had said he wanted to know how his father felt about things, and when defendant would not respond to B.L.'s question, B.L. began to bang on a toy piano "as if to drown out the loud conversation." He then left the room rather than play with a quieter toy. B.L. "seemed quite tense and did not relax until it was clear the topic had changed."

Mitchell, the visitation supervisor, gave a differing account of this incident. She did not observe any indication that B.L. was uncomfortable with his father that day. She said B.L. did not shy away from his father, and as Nadelman and his father were talking, he reached for a piano, and Mitchell instructed him to get something that was not so loud to play with. He quickly went out of the room and got some Legos to play with.

Nadelman testified that if B.L. could not see defendant again, he would be sad, but would also feel relief knowing where he would live. She was concerned about who defendant would leave B.L. with if B.L. returned to live with his father. Defendant and B.L. also had difficulty in communicating about difficult issues. While the two had had positive visits for the previous few months and there was increased trust between them, she felt it was in B.L.'s best interests to be adopted by his foster family.

Johnson also provided updated evaluations. He interviewed defendant on May 3, 2008, and observed a visit between defendant and B.L. on May 5, 2008. Defendant reported that he could rely on his girlfriend and his niece, Grace, to help care for B.L. If B.L. were returned to his care, he could easily change his work shift so that he would be home with his son at night. When asked about B.L.'s reaction to returning to his care, defendant expressed confidence that B.L. would adjust well and establish new relationships. Defendant said it had been decided at mediation that "whoever has custody of [B.L.] would allow [B.L.] to visit." He told the foster parents that they could visit B.L. at his home, but the foster parents offered to let him visit in a park or a restaurant because they did not want defendant in their home.

Prior to his observation of the visit between defendant and B.L., Johnson spoke with Mitchell, the visitation supervisor. Mitchell said that Nadelman had recently observed a visit, and that Nadelman's perception of the visit differed from hers. For example, where Nadelman would say that defendant yelled, Mitchell would say he raised his voice. During the visit, B.L. was relaxed, smiling and teasing his father. Both defendant and B.L. seemed less tense than at prior visits.

Johnson concluded that defendant was a fit parent, able and willing to provide a permanent placement for his son. He separated from R.L. "to eliminate the risk of harm to the child posed by the mother's presence." Prior to the first guardianship trial, B.L. had a "profound parent-child attachment to his father," and "there was (grave) error in the trial court's termination decision which deprived the 5 year-old [B.L.] of contact with his father for a period of 18 months."

B.L. was not threatened by his relationship with defendant. The risk that defendant would leave B.L. in the care of someone who would harm him was "hypothetical, speculative, and now remote given [B.L.]'s age." Separating B.L. from his foster family "would not likely result in harm and it is even less likely to result in serious harm." However, the potential for harm existed if defendant and the foster parents did not cooperate with each other. He also acknowledged that a transfer of custody would result in considerable distress on the part of B.L.

Johnson testified that the circumstances were largely unchanged from his prior report. He did not re-administer the AAPI test to defendant.

B.L.'s foster mother testified. If the court were to terminate defendant's parental rights, she would support B.L. continuing to have a relationship with his father.

On May 13, 2008, Judge Callahan interviewed B.L., then eight years old, in chambers. B.L. said that he wanted to live with his foster parents. He described his visits with defendant, saying defendant helps him with his homework, and then they play together outside. When asked whether it would be important to B.L. to see his father, B.L. replied, "[n]ot really." Judge Callahan later asked B.L. whether he looked forward to visiting with defendant, and B.L. again replied "[n]ot really."

D.

On May 28, 2008, Judge Callahan rendered his decision on remand and again terminated defendant's parental rights. He noted that at the December 5, 2007 hearing, he had determined that DYFS had not proven the third prong. He gave defendant the opportunity to display the ability to keep his son safe, and to provide a specific plan as a single parent. The judge found that DYFS did provide a therapist in a timely manner.

The foster mother's testimony was "measured and intelligent." She provided special attention to B.L.'s emotional needs. She gave a "sincere recognition" to B.L.'s need for contact with his father as he grows up.

The judge addressed the conflicting testimony from Mitchell, the visitation therapist, and Nadelman, regarding the piano incident. Nadelman had testified that she believed B.L. selected a toy piano to play with after defendant used a loud voice when discussing the issue of B.L. getting his hair cut. She felt that B.L. selected that toy in order to block out the discussion between the adults. In contrast, Mitchell testified there was no difference in defendant's voice or temperament. However, she removed the piano from B.L.'s hands before he began to play it. The judge concluded that Mitchell "must have sensed that [B.L.] was or would have begun to play the piano and that would have been to modify or in effect drown out the interplay that was developing at the moment." In other words, Mitchell "anticipated [B.L.]'s emotional reactions and his defense mechanism."

The judge noted that Nadelman had found that B.L.'s anxiety levels had increased since her earlier evaluations of him. She did not believe that defendant would physically hurt or intentionally harm B.L. They enjoyed themselves in her last observation, but she noted that B.L. sought fun and assistance from his father, and not comfort. She was concerned about contact between defendant and R.L., and did not find credible defendant's statement that he and R.L. did not discuss B.L. Nadelman was concerned about defendant's girlfriend being B.L.'s main caregiver if he returned to live with his father. Nadelman also testified that defendant might not believe B.L. if B.L. tried to talk with him about something that happened while he was out of the home. Thus, Nadelman concluded that reunification with defendant would cause more harm to B.L. than if he continued to live with the foster family.

Johnson also provided evaluations of defendant. The judge noted that Johnson tried to emphasize to defendant several times that it would be important for B.L. to maintain a connection with his foster family, but defendant responded that the foster parents did not want him in their home. Johnson did not re-administer the AAPI test, which measures parenting empathy, that he had first administered on October 30, 2007. Johnson concluded that the circumstances were unchanged except for appropriate parent counseling. There was potential for harm if defendant and the foster parents did not cooperate. Johnson could not predict the degree of loss to B.L. if parental rights were terminated.

The judge noted that defendant had become more patient with B.L. This was a change from past visitations, in which defendant's comments made B.L. feel bad about himself. Also, B.L. has a learning disability that requires patience and effort.

B.L. expressed a preference to live with his foster family. Judge Callahan found B.L. to be credible and not nervous. He was "quite firm, polite, and direct in a stated preference," and was able to articulate several reasons to support this choice.

The judge declined to "speculate or risk the well-being of [B.L.] on the concept that he could be resilient enough to recover from severing of his relationship with the foster parents." B.L. viewed his foster parents as his psychological parents, and there was not sufficient evidence to suggest that severing that relationship would be worth the potential risk of harm.

Judge Callahan acknowledged defendant's argument that he was put in an unfair position by the timelines imposed by the court. However, the judge noted that he followed the directives given by this court.

The judge found that defendant had not provided an acceptable childcare plan as he had been ordered to do. Defendant had stated he would be able to change his work hours, which the judge found would be "essential." However, defendant also proposed his girlfriend as a backup caretaker. "Putting aside the fact that she's reported to be a full-time daytime employee and that she may work on some Saturdays," the judge was concerned that she had never met B.L. The judge was also concerned about where B.L. would sleep, and how the girlfriend would arrange her schedule and her own obligations to be able to care for B.L. There was no information regarding whether the girlfriend would be able to assist B.L. with his special needs.

Judge Callahan found that DYFS had satisfied the third prong, that it had made reasonable efforts toward reunification by providing the therapeutic visitation. The judge also found that DYFS had satisfied the second and fourth prongs by clear and convincing evidence, noting the connection between the two prongs.

The judge reviewed the numerous evaluations of defendant over the course of the litigation. He specifically noted the opinion of Dr. Hiscox in 2005 that defendant lacked empathy and had a general self-centeredness. Hiscox felt that B.L. lacked trust in his father and did not expect him to respond to his needs sensitively and appropriately. When asked about his childcare plan, defendant stated that relatives would help care for B.L. and that things would "work out," but offered no specifics.

Nadelman had evaluated defendant in March 2007. Defendant told her that he was confident that B.L. would choose to be with him, and that they should bring him to court and let him choose where he wanted to live. Defendant felt it was impossible that B.L. would choose to live with his foster family. Nadelman was concerned that defendant did not think it would be too much pressure to ask a six-year old to make that decision.

Nadelman reported that in February 2007, defendant said he would let B.L. see his mother, but would not leave him with her. Defendant also denied that B.L.'s injuries as a infant were caused by R.L. Nadelman felt that this created an ongoing risk for B.L., because defendant continued not to recognize the potential danger presented by R.L.

After visitation was resumed, Nadelman had seen "a few indications of developing closeness and attachment." However, defendant's teasing "bordered on being mean" and increased the likelihood that B.L. would be afraid to tell his father if he were being mistreated. Nadelman was also concerned that defendant would be critical of B.L. as he mourned his foster family if he were removed from their home. She concluded that defendant did not have the psychological capacity to mitigate the serious and enduring harm to B.L. if he were removed from his foster parents.

The judge also discussed Johnson's evaluations of defendant and the foster parents. Johnson thought that the "enforced separation" of B.L. from his father had led to B.L.'s positive attachment to his foster parents. Johnson felt that defendant and the foster parents had become competitors, but that all the adults could cooperate if provided proper framework by the court. Johnson concluded that removing B.L. from his foster parents and placing him with his father "is not likely to result in harm."

Judge Callahan concluded that the passage of time had affected B.L.'s relationship with his father. B.L. was "caught in an emotional tug of war" and the judge could not "force the necessary levels of human cooperation which would be ideal to the best solution." Defendant had always been regular in his visitation and the visitation professional indicated that "a number of months, up to a year" would be required for a successful reunification.

The judge found that serious trust issues existed between B.L. and his father. B.L.'s preference to live with his foster family also had to be given some weight. The judge "explicitly rejected any suggestion of socio-economic considerations with regard to the foster parents vis-A-vis [defendant]."

However, the judge weighed heavily B.L.'s stability for at least three and a half years. He noted B.L.'s special needs learning disability, which requires more attention, both at home and at school. He concluded that B.L. could not be turned over for more than forty hours a week to a stranger. That would be an "unfair and incomplete permanency plan." Defendant's proposed backup childcare arrangement was not appropriate.

Thus, the judge concluded that DYFS had proven by clear and convincing evidence prongs two, three and four. He therefore terminated defendant's parental rights.

II

In point I, defendant argues that the trial court's decision should be reversed because it incorrectly interpreted the statutory requirements for termination of parental rights. He argues that the court applied the wrong standard because it based the termination of parental rights on B.L.'s strong relationship with the foster parents. We do not agree.

Defendant is correct that the termination of parental rights must be based on more than the child's relationship with the foster parents. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 608-09 (2007); N.J. Div. of Youth & Family Servs.

v. F.M., 375 N.J. Super. 235, 263 (App. Div. 2005). However, as we will discuss, the court found that DYFS proved by clear and convincing evidence all four prongs of the best interests test for terminating parental rights. Thus, it did not base its decision solely on the bond between B.L. and his foster parents.

III

In his point II heading, defendant argues that the trial court committed reversible error when it "reversed" the factual and legal conclusions made by this court. More accurately, he argues in the body of point II, that his due process rights were violated because at the new trial, he was not allowed to test and confront the evidence regarding the causation of B.L.'s injuries. We are satisfied that the court did not "reverse" our factual and legal conclusions, and that defendant's due process rights were not violated.

An appellate decision on the merits, even one that does not terminate the case, is final and becomes the law of the case. State v. Myers, 239 N.J. Super. 158, 164 (App. Div.), certif. denied, 127 N.J. 323 (1990). Such a decision is not tentative, or subject to later review. Ibid. The law of the case doctrine is more stringent when applied to an appellate decision in the same case than it is when applied to prior trial court decisions in the same case. SMB Assocs. v. N.J. Dep't of Envtl. Prot., 264 N.J. Super. 38, 60 (App. Div. 1993), aff'd, 137 N.J. 58 (1994). However, "[p]rior decisions on legal issues should be followed unless there is substantially different evidence at a subsequent trial, new controlling authority, or the prior decision was clearly erroneous." Sisler v. Gannett Co., 222 N.J. Super. 153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988).

In our 2006 opinion in this case, we set out in detail and affirmed the trial court's factual findings. R.L., supra, 388 N.J. Super. at 89-100. However, we disagreed with the trial court's application of the law to those facts, and in reversing the termination of defendant's parental rights, we relied upon the rationale outlined in M.M., supra, 382 N.J. Super. 264. We said:

It is clear that E.L. did not believe his wife deliberately injured their son and has maintained this belief. However, the fact that he believed his wife does not in itself indicate an inability or unwillingness to protect B.L. As we recently stated, [O]ne parent cannot be held responsible for the shortcomings of the other at the cost of forfeiting his parental rights; the non-culpable parent is obliged only to exert reasonably successful efforts to protect the child from the harm inflicted by the deficient parent. [Division of Youth and Family Servs. v. M.M., 382 N.J. Super. 264, 282 (App. Div.) certif. denied and certif. granted, 186 N.J. 606 (2006).]

His hostility toward DYFS and hospital personnel is also of concern, but it does not relate to his ability to parent his child, provided there can be some reasonable assurance that he would abide by restrictions placed upon him by the court as to contact with R.L. As to whether E.L. is capable of caring for B.L., our review of the lengthy record indicates that during the six-month period that he was sole custodian of his son, the child received proper care. There is no doubt that but for the incidents in early July, during which B.L. spent a weekend with R.L., this action would have been concluded three years ago with the child living with his father on a permanent basis. Therefore, we conclude that the Division did not satisfy the necessary prongs of N.J.S.A. 30:4C-15.1(a)(1), (2) and (4), and reverse the order terminating E.L.'s parental rights. [R.L., supra, 388 N.J. Super. at 102.]

As we previously stated in this opinion, we then instructed the trial court as follows:

There has been no contact between E.L. and B.L. since June 7, 2005, when visitation was terminated. There can be no question that things have changed. In a footnote to its brief, the Division states that B.L. has been living with the same foster family since that time and that he is bonded to them. Of course, that is subject to investigation including a bonding evaluation of the foster parents, which has never been done. E.L.'s present circumstances and ability to parent his son also needs to be reassessed as well as his amenability to accept assistance from DYFS and adhere to all orders of the Family Part judge. An updated psychological evaluation of E.L. and also B.L. should be considered. Therefore, we reverse and remand the matter to the Family Part for proceedings in accordance with this opinion. We do not reserve jurisdiction. [Id. at 102-03.]

In light of our holding that DYFS had not satisfied N.J.S.A. 30:4C-15.1(a)(1), (2) and (4), the question arises whether the trial court erred in holding a new trial on these prongs on remand. We again note that defendant did not specifically address this issue in the substance of his point II argument. We reject defendant's argument that the trial court "reversed" the factual and legal conclusions we made in our prior opinion because the trial court did what it was ordered to do. We did not order reunification. See, e.g., N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183-84 (2010) (remanding and ordering immediate development and implementation of reunification plan). However, we did order investigation of B.L.'s bond with his foster parents, something that would not be relevant if the trial court was only to investigate whether defendant was capable of taking custody of B.L., as information on the bond with foster parents is only considered in a termination analysis. The trial court was to look at B.L.'s bond with his foster parents, defendant's present circumstances and ability to parent B.L., defendant's amenability to accept assistance from DYFS and adhere to court orders, and updated psychological evaluations of both B.L. and defendant. It did so.

Further, the trial court's consideration of N.J.S.A. 30:4C-15.1(a)(1), (2) and (4) did not violate the law of the case because there was new controlling authority. Sisler, supra, 222 N.J. Super. at 159. After our 2006 opinion in this case, the Supreme Court reversed M.M. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261 (2007). In M.M., the biological mother had a limited mental capacity, was emotionally immature, had erratic tendencies, abused alcohol, and posed a risk to her infant son. Id. at 269-70. The father did not pose a direct threat to the child, as he was a capable parent, who maintained full-time employment, complied with all DYFS requirements, and was not addicted to drugs or alcohol. Id. at 272. But for the presence of the mother, the father would be able to parent his son. Ibid. However, the father remained "deeply committed to the mother notwithstanding the risk that she pose[d] to their son, and the couple remain[ed] together." Ibid.

A panel of this court had "upheld the trial court's termination of the mother's rights but reinstated the father's rights, disagreeing with the trial court's judgment as a matter of law because 'one parent cannot be held responsible for the shortcomings of the other.'" Id. at 277 (quoting M.M., supra, 382 N.J. Super. at 282-84). However, the Supreme Court found that the trial court had correctly terminated the father's parental rights in light of his cohabitation with the mother. Id. at 290. While acknowledging that parental rights "are individual in nature," the Court held that the conduct of one parent can be relevant to an evaluation of the parental fitness of another parent. The determinative issue is whether the circumstances surrounding the parental relationship, including any relationships with third-parties, cause harm to the child. . . . A parent is unfit if he or she is unable or unwilling to prevent harm to the child irrespective of the source of the harm. [Id. at 288-89.]

Thus, the Supreme Court disapproved the legal rationale upon which we had relied in our initial decision in this case. It was under this new case law that the trial court examined the facts, as found after the first trial and affirmed by this court, to determine whether DYFS had proven by clear and convincing evidence that it was in B.L.'s best interests to terminate defendant's parental rights. We therefore reject defendant's argument, as the trial court did not reverse our factual findings, and it applied case law as it existed when it applied the law to the facts and terminated defendant's parental rights.

Defendant also argues that his due process rights were violated because at the new trial he was not allowed to test and confront the evidence regarding the cause of B.L.'s injuries. We find this argument unpersuasive.

At the first trial, defendant had the opportunity to challenge this evidence and we affirmed the first trial court's findings on the cause of injury in our 2006 decision. Defendant has offered no new evidence that would warrant re-trial of these issues. We directed the trial court to examine B.L.'s relationships with defendant and his foster family, and defendant's "present circumstances and ability to parent his son." R.L., supra, 388 N.J. Super. at 102. B.L.'s injuries, and their causation, are established facts in this case. There was no due process violation.

IV

In point III, defendant argues that the court erred in terminating his parental rights because DYFS did not prove each of the four required statutory elements of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Our review of the record satisfies us that DYFS proved by clear and convincing evidence each of the four required statutory elements.

Parents have a fundamental constitutional right to enjoy a relationship with and raise their children. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). However, that constitutional protection is "tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). That balance is achieved through application of the "best interests of the child" standard. K.H.O., supra, 161 N.J. at 347. "In particular, 'parental fitness is the key to determining the best interests of the child in parental rights termination cases.'" J.N.H., supra, 172 N.J. at 471 (citing In re Guardianship of B.L.A., 332 N.J. Super. 392, 402 (Ch. Div. 2000)).

Under N.J.S.A. 30:4C-15.1(a), DYFS can initiate a petition to terminate parental rights on the grounds of the "best interest of the child" if each of the following elements is met by clear and convincing evidence:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

The statute "prescribes an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999).

Transferring guardianship to the State terminates all parental rights of the natural parents, permanently cutting off the relationship between the children and their biological parents, and is a prerequisite to having a child adopted. In re Guardianship of J.C., 129 N.J. 1, 5-10 (1992). When the child's biological parents resist the termination of their parental rights, the court's function will be to decide whether the parents can raise their children without causing them further harm. Id. at 10. Generally, the proofs in termination cases focus on past abuse and neglect and on the likelihood of it continuing. Ibid. "The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." Ibid.

The scope of an appellate court's review of a trial court's decision to terminate parental rights is limited. J.N.H., supra, 172 N.J. at 472; In re Guardianship of Jordan, 336 N.J. Super. 270, 273 (App. Div. 2001). A trial court's findings of fact are entitled to great deference and will not be disturbed on appeal unless those findings are not fairly supported by adequate, substantial, and credible evidence. Lawson Mardon Wheaton, Inc. v. Smith, 160 N.J. 383, 403 (1999); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). See also In re Adoption of Child by P.S., 315 N.J. Super. 91, 107 (App. Div. 1998) (appellate court should defer to trial court's findings of fact unless they are not supported by "substantial, credible evidence").

A.

Under the first prong of the statute, the State must show that the safety, health or development of the child has been or will continue to be harmed by the parental relationship. N.J.S.A. 30:4C-15.1(a)(1); K.H.O., supra, 161 N.J. at 348. 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.

Defendant makes two contradictory arguments. He first argues that the evidence clearly showed that B.L.'s injuries were the result of the actions of R.L., B.L.'s mother. However, he later argues that there was no evidence that B.L.'s injuries were non-accidental. The record contains sufficient credible evidence to support the trial court's finding that DYFS satisfied the first prong of the test. DYFS proved by clear and convincing evidence that B.L.'s safety, health or development was harmed by the parental relationship.

The harm required to satisfy the first prong need not be physical; emotional or psychological harm to children as the result of the action or inaction of their biological parents can suffice. In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992);

N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986). Moreover, "[a] parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379. The Supreme Court discussed what constitutes "harm," in the context of the first prong of N.J.S.A. 30:4C-15.1(a)(1), in K.H.O., supra, 161 N.J. at 348:

Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship. . . . [T]he best interests standard does not concentrate on a single or isolated harm or past harm as such. Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development.

There was sufficient credible evidence to support the trial court's finding of harm to B.L. by the relationship with his father. In the previous appeal, we found that R.L. posed a significant risk of harm to B.L. R.L., supra, 388 N.J. Super. at 101. We noted that the record "clearly show[ed] that [B.L.] suffered numerous serious injuries over a short period of time while under R.L.'s direct care." Id. at 100-01.

There was sufficient credible evidence in the record to support the trial court's finding that B.L.'s safety, health or development was harmed by his relationship with defendant.

Defendant was unable to keep B.L. safe from the risk of harm by R.L., as evidenced by: defendant attempting to remove B.L. from the hospital against medical advice on February 17, 2001; his reluctance to permit further medical evaluations in August 2001; his continued use of an unapproved daycare provider in 2003; his continued denial of R.L.'s involvement in causing B.L.'s injuries; and the two instances where he allowed R.L. unsupervised contact with B.L. in July 2003, leaving him in her custody for days at a time. R.L., supra, 388 N.J. Super. at 93-97.

There was further evidence after our remand of defendant's inability to keep B.L. safe. In December 2006, during his first visit with B.L. after the remand, he told B.L. that he could see R.L. the next week. He continued to say he was unsure of the cause of B.L.'s injuries, and that they may have been caused by the hospital or a DYFS conspiracy. He also continued to not recognize the possible safety risks to B.L. When asked what he would do if B.L. told him that defendant's girlfriend, who would be watching B.L. when he was at work, had hurt him, defendant replied that she would not harm B.L.

On another occasion defendant discussed with Nadelman various relatives who would help him to care for B.L., and when she raised the possibility that B.L. would be uncomfortable because he did not know them, defendant said B.L. would be fine as long as he was with an adult. He testified at trial that he did not know if R.L. had caused B.L.'s injuries, and that it was possible that the hospital or DYFS falsified the medical records. Defendant also testified that he was still in contact with R.L. R.L. desired to see B.L., even going to the DYFS office to drop off a foster home application.

Therefore, the court did not err in determining that DYFS satisfied the first prong by showing harm to the child by the parental relationship. There was sufficient credible evidence to support that finding. P.S., supra, 315 N.J. Super. at 107.

B.

The second statutory element of the best-interests standard is that the parent is unwilling or unable to eliminate the harm facing the child, or is unable or unwilling to provide a safe and stable home for the child. N.J.S.A. 30:4C-15.1(a)(2). It is aimed at "determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348; N.J.S.A. 30:4C-15.1(a)(2). Alternatively, the state can show "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. Super. at 348-49. In that respect, [w]hile the second prong more directly focuses on conduct that equates with parental unfitness, the two components of the harm requirement, N.J.S.A. 30:4C-15.1(a)(1) and (2) are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child. [D.M.H., supra, 161 N.J. at 379.]

"In other words, the issue becomes whether the parent can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

The second prong may be met by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child. [K.H.O., supra, 161 N.J. at 353.]

Defendant argues that B.L. was removed because of unsupervised contact between R.L. and B.L., and it is "reasonably foreseeable" that defendant will never allow R.L. to have unsupervised contact with B.L. in the future. We reject this argument and accept the trial court's finding that clear and convincing evidence established that defendant is unable to eliminate the harm and provide a safe and stable home for B.L.

The court found that defendant had not provided an acceptable childcare plan as he had been ordered to do. It was not acceptable for B.L. to be turned over for more than forty hours a week to strangers, and defendant had not proposed an appropriate back-up childcare plan. Defendant also continued to deny that R.L. had caused B.L.'s injures, and thus continued not to recognize the potential danger posed by R.L. The court also noted that Nadelman was concerned that defendant would not believe B.L. if B.L. tried to talk with him about something that happened while he was out of the home, and that defendant would be critical of B.L. as he mourned his foster family. Finally, the court found that serious trust issues existed between defendant and B.L.

The trial court's finding that defendant was not able to provide a stable and protective home is supported by clear and convincing evidence. Defendant continued to deny that R.L. caused B.L.'s injuries, testifying that DYFS or the doctors may have falsified the medical records. Nadelman testified that in her interviews with defendant, he did not recognize that being separated from his foster family would have a traumatizing effect on B.L. According to the AAPI test, defendant had little empathy for children's needs and feelings, and endorsed the principle that a child should provide comfort and support to his parents. These were risk factors, as defendant did not acknowledge B.L.'s distress at having to leave his foster family. In stating that his girlfriend or family members would watch B.L., he also failed to demonstrate any awareness that it would be difficult for B.L. to have a stranger care for him. Also, defendant's refusal to discuss the situation with B.L. raised a concern about whether he could help B.L. through the grieving process of losing his foster family.

Judge Callahan also had significant concerns about the reunification plan offered by defendant. These concerns are supported by clear and convincing evidence in the record. Defendant said that his girlfriend or relatives would provide care for B.L. while he worked at night. However, B.L. had never met the girlfriend or any relatives, and they had not been made available to DYFS or the court. Nadelman expressed concern that it would be too much to expect B.L. to be helped with homework and put to bed by a stranger for five nights every week. While defendant testified at trial that he could change his work schedule, he never offered any evidence from his employer that he would be able to do so.

Defendant relies on the testimony of Johnson that there was nothing in the record to indicate that defendant was an unfit parent and that defendant understood the risk that R.L. posed to B.L. However, Johnson was asked in cross-examination about defendant's statement that he did not believe that R.L. had harmed B.L. Johnson responded that defendant believed he would protect B.L. in the future, and Johnson believed that defendant was sincere in his beliefs, and thus was a fit parent. Therefore, Johnson's testimony that defendant understood the risk posed by R.L. is not supported by Johnson's own statements.

The court did not err in determining that DYFS satisfied the second prong of the test. There was clear and convincing evidence to support the finding that defendant was unable to eliminate the harm to the child or to provide him a safe and stable home. K.H.O., supra, 161 N.J. at 348-49.

C.

The third element requires DYFS to undertake "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3).

Defendant argues that DYFS failed to provide him with reasonable services to assist in reunification. "Reasonable efforts" are defined as attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation. [N.J.S.A. 30:4C-15.1(c).]

DYFS must encourage, foster and maintain the bond between the parent and child, promote and assist in visitation, keep the parent informed of the child's progress in foster care, and inform the parent of the necessary or appropriate measures he or she should pursue in order to continue and strengthen that relationship and, eventually, regain custody of his or her children. D.M.H., supra, 161 N.J. at 390. "The refusal to provide or allow an able and willing parent contact with her child is tantamount to a unilateral displacement of the biological parent, which is impermissible without judicial approval." Id. at 389.

Evaluation of DYFS's efforts to reunite a particular family must be done on a case-by-case basis because [s]ervices that may address one family's needs will not be helpful to another.

Whether particular services are necessary in order to comply with the [reasonable] efforts requirement must therefore be decided with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort. [Id. at 390.]

Therefore, the reasonableness of "DYFS's efforts on behalf of a parent is not measured by their success." Id. at 393. See K.H.O., supra, 161 N.J. at 354 (requirements satisfied where DYFS attempted to find relatives or friends who would care for the child, encouraged continued parental visits, informed the mother of the child's progress, monitored the mother's visits, and provided drug treatment programs).

Both DYFS and the Law Guardian argue that in holding that DYFS failed to satisfy prongs one, two and four, we implicitly held in our prior opinion that the third prong had been met. We did not. We did not address the third prong. See R.L., supra, 388 N.J. Super. at 101-03. Our silence regarding the third prong did not constitute an affirmance of the trial court's ruling on this prong in the first trial. Once we addressed the other three prongs we had to reverse because we could not have affirmed even if the third prong had been met. In any event, this argument is unimportant because there was clear and convincing evidence that DYFS satisfied this prong.

Defendant argues that DYFS failed to satisfy this prong because therapeutic visitation was not put into place until January 2008, and this program was terminated after only three months. But DYFS offered defendant many services. Prior to the remand, defendant was referred to parenting skills classes and had psychological assessments done. DYFS arranged for visitation between defendant and B.L., and in 2002 allowed unsupervised visitation, which was later expanded to overnight visits and then weekend visits. B.L. was returned to his father's custody, and was removed after DYFS twice found him in the custody of R.L.

After the remand, DYFS referred defendant to Family Connections for individual therapy. The court also ordered therapeutic visitation with a culturally sensitive therapist to assist defendant at the visits with B.L. At the time of trial in 2008, the court found that defendant would need up to a year in the Reunity House therapeutic visitation program to bring about a successful reunification.

The court did not err in determining that DYFS had satisfied the third prong of the test. There was sufficient evidence to find that DYFS made reasonable efforts to help defendant correct his circumstances.

D.

The fourth prong requires DYFS to show that the termination of parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). Under this prong the court addresses "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. "This criterion is related to the first and second elements of the best interests standard, which also focus on parental harm to the children." D.M.H., supra, 161 N.J. at 384. The child's need for permanency and stability emerges as a "central factor" in guardianship cases. K.H.O., supra, 161 N.J. at 357. In fact, "[t]he trend over the last thirty years has been towards foster care reforms that place limits on the amount of time a parent may have to correct conditions at home in anticipation of reunification." Id. at 358.

Here the overwhelming and undisputed evidence established that B.L., who had been placed with a relative and in several foster care homes since being removed from his parents' care, needed permanency and that defendant was not in a position to parent the child. The issue is ultimately not what is best for defendant, but what is best for the child, which, as the court found, was termination, because it freed the child for adoption by his foster family. K.H.O., supra, 161 N.J. at 355. Here there was no indication that defendant could rectify the impediments to reunification, nor was there any indication that defendant could provide a safe, permanent, stable home for the child, and thus termination of parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1.

B.L. is now nearly eleven years old. He lived with defendant for less than a year and a half of his life (from his birth in March 2000 to his initial removal in December 2000, and from December 2002 to July 2003). He has been living with his foster family for more than six years and views them as his psychological parents, and they wish to adopt him. Furthermore, Nadelman testified that while a degree of affection had developed between defendant and B.L. since visits resumed, B.L. did not look to defendant for comfort and was afraid to discuss controversial issues with him. B.L. was exhibiting signs of anxiety while waiting for a decision about where he would live. Also, B.L., then eight years old, told the court that he wished to remain with his foster family. Even defendant's expert, Johnson, testified that it would be a major adjustment for B.L. to be returned to defendant's care.

We find no error in Judge Callahan's finding that DYFS satisfied the fourth prong.

Affirmed.


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