February 16, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
S.R.M. AND G.F., IN THE MATTER OF THE GUARDIANSHIP OF G.N.F., A MINOR. DEFENDANTS-APPELLANTS.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2011 - Decided Before Judges Reisner and Sabatino.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-127-09.
Yvonne Smith Segars, Public Defender, attorney for appellant S.R.M. (Anthony J. Vecchio, Designated Counsel, of counsel and on the brief).
Yvonne Smith Segars, Public Defender, attorney for appellant G.F. (William J. Sweeney, Designated Counsel, on the brief). Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jody A. Carbone, Deputy Attorney General, on the brief).
Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor G.N.F. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
After a three-day guardianship trial, the parental rights of defendants S.R.M. and G.F., the biological parents of G.N.F. ("Alicia"*fn1 ), were terminated by the Family Part pursuant to N.J.S.A. 30:4C-15.1(a). Defendants have respectively appealed that final judgment, principally alleging that the trial court's decision was contrary to the child's best interests; that the trial court and the Division of Youth and Family Services ("DYFS" or "the Division") failed to adequately explore alternatives to termination, in particular the possible placement with the child's paternal grandmother in South Carolina; that the court's decision was premature; and that the court committed other procedural and substantive errors. We reject defendants' arguments and affirm.
The Division's proofs at trial, which were not rebutted by any defense testimony, adduced the following pertinent facts and circumstances. On the whole, they present a scenario in which Alicia was removed from her mother, S.R.M., at birth because S.R.M. was addicted to crack cocaine and heroin, had used those illegal drugs throughout her pregnancy, and was unable to provide Alicia with a safe home and a stable environment. The child's father, G.F., was also addicted to drugs, resulting in his incarceration for much of Alicia's life to date. Despite reasonable efforts by the Division to offer services to defendants, they failed to take advantage of those services and, in fact, virtually disappeared for almost sixteen months during their daughter's first two years. Meanwhile, Alicia has bonded with and has been well-cared for by her foster parents, who now wish to adopt her. The sole expert testimony presented at trial confirmed that it is in Alicia's best interests to remain with her foster parents and that a placement with her paternal grandmother in South Carolina, as suggested by defendants, would jeopardize her well-being.
Alicia was born in January 2008. Four months prior to her delivery, Alicia's mother, S.R.M., had come to the hospital with chest and abdominal pain. S.R.M., who was then twenty-three weeks pregnant and homeless, admitted that she had been smoking crack cocaine during her pregnancy and, in fact, she tested positive at the hospital for opiates. By S.R.M.'s account, she had been "living in the street" with G.F. since returning to New Jersey from Texas two months earlier. According to the hospital's discharge planning form, "DYFS [would] make a report, but [could not] intervene at [that] time. [S.R.M.] [was to] be given a bus ticket and a shelter list."
In early January 2008, the Division received a second referral from the hospital. This time, "[s]ocial service intervention was required because S.R.M. had an outside delivery, the baby was admitted to the NICU, and because [S.R.M.] tested positive for substance abuse." S.R.M. later reported to hospital staff that "she did not realize that she was in labor as she did not feel pain." Upon arrival at the hospital, the baby's urine tested positive for cocaine. S.R.M. reported that she had last used cocaine at 10:00 p.m. on the night before Alicia's birth. At the hospital, S.R.M. tested positive for cocaine and heroin and she "appeared to be under the influence of a substance." S.R.M.'s medical records confirmed her repeated history of drug use before and during her pregnancy.
Upon her arrival at the hospital, Alicia was admitted to the intensive care nursery. Less than a week later, she was transferred to the normal newborn nursery. The Division petitioned for, and was granted, temporary custody of Alicia on January 9, 2008, pursuant to an order to show cause. Alicia was discharged to a DYFS worker on January 11, 2008 and placed in foster care.
The Division held a family team meeting on March 12, 2008, attempting to develop a plan to promote, at that time, potential reunification of Alicia with her birth parents, S.R.M. and G.F. S.R.M. and G.F. both visited with Alicia that day. However, both S.R.M. and G.F. thereafter ceased contact with the Division for over a year. In the meantime, the Division brought an action in the Family Part alleging that Alicia had been abused and neglected.
In May 2008, the Family Part conducted a fact-finding hearing. At that hearing, the court substantiated the Division's allegations of abuse and neglect. In particular, the court noted that both S.R.M. and Alicia had tested positive for cocaine at the child's birth, that S.R.M. had no appropriate housing for the child, and that G.F. had not presented himself as an alternative and able caretaker.
On February 6, 2009, thirteen months after Alicia was born, the Division filed a complaint for guardianship and termination of parental rights as to both defendants. In the meantime, Alicia was evaluated by an early intervention team on April 18, 2009. The evaluation team determined that Alicia was not eligible for services, as she was "demonstrating age appropriate skills in all areas of her development."
On May 4, 2009, S.R.M. contacted the Division, advising that she had been incarcerated from March 25, 2009 through May 1, 2009. During that conversation, S.R.M. was notified that a hearing in the Family Part was scheduled on May 13, 2009. S.R.M. failed to attend that hearing. However, G.F., who was then incarcerated, was brought to court for the May 13 hearing. He testified at that time that he had been living with his mother for the past six months, and that he expected to be released from custody the following day. The court ordered G.F. to meet with a DYFS representative two days later on May 15, 2009. However, G.F. failed to appear that day, despite the court's directive.
S.R.M. first appeared before the Family Part on June 3, 2009, at which time she claimed that she had no knowledge of the pending litigation. During that hearing, she admitted that she had used both cocaine and heroin the day before and she tested positive for both substances. S.R.M. suggested that Alicia's paternal grandmother in South Carolina, C.S., might serve as a potential care provider. However, the Division had already ruled C.S. out a year earlier, due to a physical disability that C.S. had previously reported.
Another hearing was conducted in the Family Part on July 15, 2009, which both S.R.M. and G.F. attended. Shortly after that hearing, C.S. and G.F. visited with Alicia. It was the first time that C.S. had ever met Alicia and only the second time that G.F. had been with her.
At an ensuing hearing, on July 21, 2009, C.S. testified that her first contact with DYFS was in 2009; that she had moved to South Carolina approximately five years earlier; that prior to 2005, she lived in Newark; and that she had a disability that prevents her from lifting more than "a certain amount of weight." C.S.'s present husband also testified. He stated that he lived in Newark, that he was going to move to South Carolina to live with C.S., that he couldn't stand for long periods, and that he required some assistance to walk.
A DYFS caseworker testified at the July 21, 2009 hearing that C.S. had indicated to him that G.F. was not aware of the severity of her disability, that she was unable to lift more than ten pounds, and that she had previously told a caseworker that she was disabled. He confirmed that a "rule-out" letter had been sent by DYFS to C.S.'s Newark address on May 28, 2008. S.R.M. and G.F. both represented to the court that they would attend drug treatment in South Carolina. S.R.M. cancelled the visit with Alicia that had been scheduled that day, because they were apparently relocating to South Carolina the following day. Neither S.R.M. nor G.F. attended the court-ordered drug screening that day.
On September 21, 2009, both S.R.M. and G.F. attended a psychological and bonding evaluation with the Division's mental health expert, Mark Singer, Ed.D., a licensed psychologist. Two days later, on September 23, 2009, both parents visited with Alicia. During that visit, they each admitted to the DYFS caseworker that they were not attending substance abuse treatment in South Carolina.
On October 14, 2009, S.R.M. requested a visit with Alicia, which was arranged. S.R.M. told the caseworker that there were no substance abuse programs in South Carolina. She also stated that the last time both she and G.F. had used drugs was in August 2009.
After a subsequent hearing on October 19, 2009, G.F. tested positive for marijuana and morphine. The Division thereupon provided S.R.M. and G.F. with a list of substance abuse programs; G.F. indicated that he would contact them upon his return to South Carolina. The DYFS caseworker arranged for a visit with Alicia that day. However, G.F. failed to attend that visit and Alicia visited with S.R.M. only.
At another hearing on January 25, 2010, G.F. tested positive for cocaine and methadone. After that hearing, S.R.M., G.F., and C.S. visited with Alicia. Their next visit with her was scheduled for January 27, 2010. G.F. again tested positive for opiates and cocaine at a substance evaluation on January 27, 2010; G.F. was recommended for intensive outpatient treatment. S.R.M. also tested positive at that time for opiates and cocaine; she was recommended for partial hospitalization. S.R.M. and C.S. visited with Alicia that day, although G.F. failed to attend. Neither S.R.M. nor G.F. has visited with Alicia since.
The guardianship trial commenced on February 22, 2010, and continued on April 19, 2010 and April 21, 2010. The Division presented testimony from two DYFS employees and from Dr. Singer. Defendants called no witnesses.
Neither S.R.M. nor G.F. appeared on February 22, 2010, the first day of the scheduled guardianship trial. The trial court contacted G.F. by telephone. G.F. informed the court that he had a family emergency, that he was in transit, and that he would arrive in about fifteen minutes. However, G.F. never appeared on that date and neither did S.R.M. Both the DYFS caseworker and a supervisor for the Newark adoption office testified that day.
On April 19, 2010, the second day of trial, Dr. Singer testified as to the psychological and bonding evaluations he had completed with respect to Alicia. G.F.'s counsel requested a continuance until an appropriate placement for Alicia was determined. The Law Guardian and the Division opposed the continuance, requesting that the placement issue be dealt with in a later best interests hearing. Based upon the circumstances before it, the trial court denied the request for a continuance.
On April 21, 2010, the trial judge heard oral summations from each party, and on May 11, 2010, the judge entered her oral decision on the record. The judge made the following pertinent findings of fact:
[Alicia] [was] born in Irvington, New Jersey when her mother was at the home of a relative. At birth[,] she weighed [seven] pounds, [fifteen] ounces, and because she was born outside of the hospital, there is no A[PGAR] score. . . . [When she arrived at the hospital,] [Alicia] tested positive for cocaine.
During her pregnancy, S.R.M. admitted that she had had very limited prenatal care. She also acknowledged having used [ten] bags of cocaine prior to the birth of [Alicia].
[S.R.M.] did not have stable housing and [G.F.]'s whereabouts were unknown. [Alicia] is the third child born to [S.R.M.]. Her older daughter, who is now [seventeen], is in the custody of her father, and has been cared for by her father and paternal relatives in the states of Virginia and New Jersey for at least [fifteen] years.
[S.R.M.]'s second child, a boy, was born in 2003. When her son was born, both [S.R.M.] and the baby tested positive for cocaine. Her parental rights to her son . . . were terminated by court order entered on September 20th, 2004 by Judge Craig Harris and docketed as FG-07-2005. Her son . . . was adopted on July 19th, 2005.
[S.R.M.] has struggled with drug addiction all of her life. She began using alcohol at [thirteen], first tried marijuana at [sixteen], cocaine at [eighteen], and heroin at [twenty-one]. Her drug of choice is reportedly cocaine and she acknowledges that her drug habit has cost her up to [$]200 to $300 per day.
In July 2009 just before she entered Bergen Regional Center for detoxification, she admitted to using six bags a day. She has tried several drug rehabilitation programs, including Turning Point in Verona, Bergen Pines, Bergen Regional, and most recently Family Life in South Carolina.
She dropped out of high school in the [tenth] [g]rade. She has never worked. She has never participated in any job training program. She does not have a driver's license. She does have a prior criminal history that includes seven prior arrests, four convictions for disorderly persons offenses, and three convictions for--three prior convictions for controlled dangerous substance.
[G.F.], [Alicia] is the only child of [G.F.]. [G.F.] is a high[-]school graduate and when employed, he works as a chef. He has a valid driver's license. However, he has multiple arrests for petty crimes; one prior conviction for aggravated assault for which he served five years in prison. He too has a substance abuse history, having first used alcohol at age [thirteen], marijuana at age [eighteen], cocaine and heroin at age [twenty-one].
He has participated in drug rehabilitation programs at Anchor House and most recently in South Carolina.
The [foster] parents, from the information provided, are described as[:] the resource mom is a health care professional. The resource dad is the proprietor of a specialty store. They have no biological children, and when [Alicia] was placed with the couple they claim that they were told that the parental rights of the birth parents had been terminated, and that there was no family that qualified to care for her.
Based on those findings, the trial judge terminated the parental rights of both S.R.M. and G.F., and a corresponding judgment for guardianship in favor of the Division was entered on May 11, 2010. This consolidated appeal by each of the parents ensued.
A parent's constitutional right to raise his or her biological child arises out of a presumption that a parent will act in the best interests of that child. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Where the parent-child relationship jeopardizes the health, safety and welfare of a child, the State, in its role as parens patriae, may intervene. See Ibid.; see also Sorentino v. Family & Children's Soc'y of Elizabeth, 74 N.J. 313, 319 (1977). In cases where it seeks to terminate a biological parent's rights, the State must present sufficient evidence to show that the "best interests" of the child will be substantially prejudiced absent a termination of those rights. A.W., supra, 103 N.J. at 603 (quoting In re Guardianship of Cope, 106 N.J. Super. 336, 340-41 (App. Div. 1969)).
Time is often a critical consideration in termination cases, such as the case before us. In particular, the Supreme Court has recognized that children have a "paramount need" for "permanent and defined parent-child relationships." In re Guardianship of J.C., 129 N.J. 1, 26 (1992). There are "strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay." In re Guardianship of D.M.H., 161 N.J. 365, 385 (1999). Courts should not permit children to languish indefinitely in foster care while a birth parent tries to correct the deficiencies that resulted in the child's removal. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." Ibid.
Consistent with these general principles, it is well settled that, when seeking the termination of a parent's rights under N.J.S.A. 30:4C-15.1(a), DYFS has the burden of establishing, by clear and convincing proof, the following standards:
(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 [foster] family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a); see also A.W., supra, 103 N.J. at 602-11 (1986) (reciting the four controlling standards later codified in Title 30).]
Accordingly, a trial court may terminate the statutory and constitutional rights of a biological parent upon a showing of clear and convincing evidence that the child is at risk of serious and lasting future harm, under the four prongs of this best-interests test. See J.C., supra, 129 N.J. at 10; A.W., supra, 103 N.J. at 604-611.
Our scope of review in evaluating appeals from final judgments terminating a biological parent's rights is a limited one. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007). We afford deference to a trial court's findings of fact in such cases because the trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293). Such deference is afforded unless it is determined that the trial judge "went so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
Applying that limited standard of review to the record before us, we affirm the judgment of termination as to both defendants, substantially for the reasons cogently expressed by Judge Verna Leath in her oral opinion of May 11, 2010. We add the following comments by way of amplification.
As to the first prong of the statute, we fully concur with Judge Leath that both S.R.M. and G.F. have endangered, or will continue to endanger, Alicia's safety, health or development. N.J.S.A. 30:4C-15.1(a)(1). "Although a particularly egregious single harm can trigger [this] standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). "The absence of physical abuse or neglect is not conclusive." A.W., supra, 103 N.J. at 605 (quoting In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977)). The court also "must consider the potential for serious psychological damage to the child." A.W., supra, 103 N.J. at 605 (citing Sorentino, supra, 72 N.J. at 131-32); see also N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
Such harm satisfying the statutory test may be evidenced by the negative effects of separating the child from the foster family. J.C., supra, 129 N.J. at 18. A potential for serious emotional injury from such removal from the loving care of a foster family may comprise sufficient harm to warrant termination. A.W. supra, 103 N.J. at 605. "The potential return of a child to a parent may be so injurious that it would bar such an alternative." Ibid. This can be true even where "the natural parent is blameless in the loss of custody of the child and would be a good parent." In re Guardianship of J.E.D., 217 N.J. Super. 1, 16 (App. Div. 1987) (citing Sorentino, supra, 72 N.J. at 133), certif. denied, 111 N.J. 637 (1988). The potential harm in such contexts must be "serious and enduring." J.C., supra, 129 N.J. at 19. "Such proof should include the testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with the foster parent." Ibid. Such an expert evaluation was, in fact, performed in the instant case by Dr. Singer, whose opinions the trial judge reasonably found to be credible and persuasive.
The virtual absence of either defendant from Alicia's life to date, an absence that is neither the fault of Alicia herself nor the Division, is also strong evidence of the harm to the child. As the Supreme Court has observed, a harm exists where a parent's absence "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 Court explained that such harm arises from "[a parent's] failure to provide even minimal parenting to his children." D.M.H., supra, 161 N.J. at 379 (citing A.W., supra, 103 N.J. at 606-07).
Here, both S.R.M. and G.F. have lengthy histories of substance abuse and extensive arrest records. S.R.M. and G.F. repeatedly indicated that they were going to seek treatment, but neither of them followed through on those assurances. As a consequence of their respective drug habits, both S.R.M. and G.F. have been subject to incarceration, on repeated occasions and for extended periods of time. Alicia was born drug-exposed due to S.R.M.'s decision to continue to abuse crack cocaine and heroin throughout her pregnancy. Three years earlier, S.R.M. had given birth to a drug-exposed baby boy; her parental rights as to that child have since been terminated.
Judge Leath reasonably determined that DYFS satisfied the first prong of the best interests standard by clear and convincing evidence. The trial judge found that although she had indicated a desire to keep the child, S.R.M. failed to follow through with either her treatment or with Alicia's placement, despite DYFS's sustained efforts to assist her as a parent. Meanwhile, at the time of Alicia's birth, G.F.'s whereabouts were unknown. Several days later, by the time Alicia entered foster care, G.F was incarcerated. The trial judge also correctly found that G.F. did not present himself as a permanent or viable plan for the child.
On the whole, there is substantial evidence in the record to support the trial court's finding that there was clear and convincing evidence that the child was harmed by S.R.M. and that the child was likewise harmed by G.F., thereby satisfying the first statutory element as to both defendants.
Under the second prong of the best-interests test, the trial court must assess whether there is clear and convincing evidence that the parent is unable or unwilling to eliminate the harm and whether a delay in permanent placement will contribute to that harm. N.J.S.A. 30:4C-15.1(a)(2). This requires the court to assess "whether it is reasonably foreseeable that the parents can cease to inflict harm upon the [child.]" A.W., supra, 103 N.J. at 607. The court may evaluate whether there are "indications of parental dereliction and irresponsibility, such as the parent's . . . 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[.]" K.H.O., supra, 161 N.J. at 353. Moreover, the first and second prongs are related to one another, and evidence that supports one may support the other. D.M.H., supra, 161 N.J. at 379.
Here, the trial judge reasonably found that "[the] continuing inability of [S.R.M.] and/or [G.F.] to overcome their own addictions in order to care for their children constitutes child endangerment." The record establishes that two months after Alicia was born, S.R.M. and G.F. attended a family team meeting, after which they disappeared, only to resurface when they were incarcerated. With the parents having irresponsibly vanished, the Division reasonably sought to find an alternative permanent placement for Alicia. Neither S.R.M. or G.F. presented another plan in the meantime, nor did they communicate with the Division.
As Dr. Singer testified at trial, without opposing expert testimony, S.R.M.'s and G.F.'s history of substance abuse "has a significant negative impact on their ability to create that kind of consistency and stability in a healthy way--forget about for the child, but even for themselves." The trial judge made a similar observation:
[T]he court, as finder of fact, finds that it did make an adverse inference as to what their activities were when they were ostensibly here in the State of New Jersey because there was a matter in progress to determine whether their parental rights should be terminated. And the adverse inference . . . reached by the [c]court, based on their failure to appear on that date, is that given an opportunity to make a choice between appearing in court and involving themselves in other activity, they chose to involve themselves in other activity.
There is substantial unrefuted evidence in the record to support the trial court's finding that there was clear and convincing evidence that S.R.M. and G.F. were both unable to eliminate the harm and to provide a safe and stable home for Alicia. Moreover, there is substantial evidence in the record to support the trial court's finding that there was clear and convincing evidence that a delay in Alicia's permanent placement would add to that harm. The second prong was therefore satisfied.
Under the third prong of the best interests test, a trial court must assess whether there is clear and convincing evidence that DYFS made "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and [that] the court considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1a(3). Such reasonable efforts may include:
(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).]
A reasonable effort to provide services requires that the effort be reasonable, not that it be successful. See D.M.H., supra, 161 N.J. at 393; see also K.H.O., supra, 161 N.J. at 354.
Here, the trial court found that, although the court had signed an order in May 2008 excusing the Division from providing further services to defendants, the Division nonetheless continued to provide services both to S.R.M. and to G.F. As enumerated by the trial judge, those services included: visitation, an assessment, psychological evaluations, and transportation fare between New Jersey and South Carolina. The Division also explored relative resources. The trial judge further found that: as to the relative resource names that have been placed on the record that [DYFS] did meaningfully explore those relatives and [that] they were--for different reasons they were unable to present themselves as a permanent plan for [Alicia] and/or they were ruled out by [DYFS] for reasons that have their bases in [the Adoption and safe Families Act].
Judge Leath fairly considered and rejected the option of an identified surrender to the paternal grandmother, C.S., as an identified surrender was not a legal or a viable alternative. Pursuant to N.J. Div. of Youth & Family Serv. v. D.M.B., 375 N.J. Super. 141, 145-47 (App. Div.), certif. denied, 183 N.J. 586 (2005), the trial court noted that "[t]he option of accepting or rejecting an identified surrender lies with [DYFS]," and that, in this case, "[DYFS], as represented by the Deputy Attorney General[,] was not going to accept an identified surrender." We find that, given C.S.'s previously-reported physical disabilities, her lack of past sustained contact or caregiving with Alicia, and the lack of finality associated with an identified surrender as opposed to a termination, the Division had ample reasons to withhold its consent to such an identified surrender.
The trial court also fairly considered and rejected the option of placing Alicia with C.S. in an interim arrangement short of an identified surrender. C.S. was first identified and ruled out as a placement when C.S. indicated to the Division that she would be unable to care for Alicia due to her own physical disability. The trial court correctly noted that Alicia has never been in C.S.'s care or custody. C.S. was ruled out as a caregiver by DYFS in May 2008, six months prior to Alicia's placement with her current foster parents. In July 2009, when C.S. was again proposed as a placement, the court signed an order providing for an expedited interstate assessment. However, due to an outstanding lead assessment, C.S.'s home was not licensed by South Carolina authorities until the day of the guardianship trial.
Judge Leath commended C.S.'s dedication and perseverance. Nevertheless, in the best interests of Alicia, the court reasonably rejected her as a viable alternative placement. The judge noted that "although [C.S.] has visited with [Alicia], she has only seen [Alicia] a limited number of times in the child's life. There is no evidence before the [c]court, by way of expert report or other, that there is a bond between [Alicia] and [C.S.]."
Although we share the trial judge's appreciation for the sincerity of C.S's willingness to care for Alicia, there is ample credible proof in the record to justify the court's ultimate conclusion that the child is better off remaining in the care of her foster parents than she would be if she were forced to relocate to South Carolina to live with an elderly relative that she hardly knows, who has a history of health problems, and with whom she has not bonded. There is substantial evidence in the record to support the trial court's finding that there was clear and convincing evidence that DYFS made reasonable efforts to provide services and that, realistically, no reasonable alternative to the termination of defendants' parental rights existed.
Under the fourth prong of the best interests test, the trial court must assess whether a termination of parental rights will do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). This requires the court to assess whether the child would suffer more harm from terminating the relationship with the biological parent than from terminating the relationship with the foster family. See K.H.O., supra, 161 N.J. at 356-57.
The best interests test contemplates "the child's need for permanency and stability[.]" Ibid. (citing J.C., supra, 129 N.J. at 26). The Supreme Court has recognized that the "risk to children stemming from the deprivation of their natural parent is one that inheres in the termination of parental rights and is based on the paramount need children have for permanent and defined parent-child relationships." J.C., supra, 129 N.J. at 26. Accordingly, termination of parental rights is permitted "where a child has been in placement for more than one year, and the family has failed to remedy the problems that caused placement, despite DYFS's 'diligent efforts'[.]" K.H.O., supra, 161 N.J. at 358.
Over the course of Alicia's three years of life, both S.R.M. and G.F. have repeatedly failed to maintain contact with her. Just three weeks before her first birthday, Alicia was placed with her current foster parents. During that first year of her life, S.R.M. managed to visit Alicia only twice and G.F. visited her only once. Then, in the two years since Alicia was placed with her foster parents, S.R.M. visited her only six times and G.F. visited her only three times.
The trial judge reasonably relied upon the bonding evaluation conducted by Dr. Singer, which, consistent with his testimony at trial, revealed that "Alicia has come to view her foster parents as her psychological parents." In particular, Dr. Singer found that:
The bonding data suggest that, within a reasonable degree of psychological certainty, should [Alicia] lose her relationship with her psychological parents, who appear to continue to be the only consistent parental figures in her life, the child would likely experience a significant reaction to such a loss. It is anticipated that the child would regress emotionally and behaviorally.
The data further suggest that, within a reasonable degree of psychological certainty, should [Alicia]'s relationship with her biological parents be severed, it is not anticipated that [she] would experience any significant and enduring reaction to such a loss, as the data does not suggest that [Alicia] has come to view her biological parents as being significant figures in her life.
Ultimately, Dr. Singer determined that "[t]he totality of the data suggest that termination of parental rights would do more good than harm in order to provide [Alicia] with the opportunity to achieve permanency." The trial judge reasonably credited Dr. Singer's unrebutted expert opinion.
In canvassing the proofs, Judge Leath aptly noted that "there is not[,] and [there] has not been[,] anything produced by [S.R.M. or by G.F.] to militate against a finding by the [c]court that[,] as to prong four[,] . . . termination of parental rights of [S.R.M.] and [G.F.] would be in the best interests of [Alicia]." The judge also found noteworthy the foster mother's assertion that "the bond she has with [Alicia] is as close as if the[y] shared the same DNA."
In sum, there is substantial evidence in the record to support the trial court's finding of clear and convincing evidence that terminating the parental rights of S.R.M. and of G.F. would not do more harm than good. The fourth prong was adequately proven, particularly in the absence of competing defense proofs.
We have considered the remaining arguments and subsidiary points raised by defendants, and conclude that they lack sufficient merit to be discussed in this opinion. R. 2:11-3(e)(1)(E). With respect to defendants' claim that the court should have adjourned the completion of the trial for additional bonding assessments and potential relationship-building with Alicia, we simply note that such adjournment decisions are within the sound discretion of a trial court. See Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003); Union Cnty. Imp. Auth. v. Artaki, LLC, 392 N.J. Super. 141, 149 (App. Div. 2007). That discretion plainly was not abused here, particularly in light of the child's paramount and time-sensitive interests in attaining permanency. See D.M.H., supra, 161 N.J. at 148.