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New Jersey Division of Youth and Family Services v. N.M

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 24, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
N.M., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF D.M.M., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-18-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 11, 2011 - Decided

Before Judges Graves, Messano and Waugh.

Defendant N.M. appeals from the termination of her parental rights to her son D.M.M. She raises the following points on appeal:

POINT I -- THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE TERMINATION OF PARENTAL RIGHTS BASED ON A "PROPENSITY FOR UNFITNESS" IS IMPROPER WHEN THE DIVISION IS UNABLE TO PROVE THE STATUTORY CRITERIA OF THE BEST INTERESTS TEST.

(A)

UNDER N.J.S.A. 30:4C-15.1 CRITERIA, THE DEFENDANT DID NOT HARM D.M.M. AND WAS NOT PARENTALLY UNFIT.

(B)

AS A RESULT OF THE INSTITUTIONAL BIAS AND UNSUPPORTED HEARSAY THAT APPEARS IN THE RECORDS OF ITS SERVICE PROVIDERS, THE DIVISION WAS NOT COMMITTED TO THE SUCCESS OF ITS REUNIFICATION EFFORT.

(C)

THE ABSENCE OF UP-TO-DATE BONDING EVALUATIONS FATALLY UNDERMINED THE TRIAL COURT'S FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD. POINT II -- THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S FINDINGS WERE BASED ON THE UNTRUSTWORTHY AND UNAUTHENTICATED RECORDS OF THE DIVISION'S SERVICE PROVIDERS.

POINT III -- THE DEFENDANT'S RIGHT TO A FAIRLY CONDUCTED GUARDIANSHIP TRIAL WAS PREJUDICED BY THE DEPUTY ATTORNEY GENERAL'S USE OF A SPECIOUS HYPOTHETICAL QUESTION BECAUSE IT PERMITTED DR. LOVING TO RENDER AN INADMISSIBLE "NET OPINION" BOLSTERING THE DIVISION'S THEORY OF THE CASE (NOT RAISED BELOW).

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

N.M. has had four children with M.A.M. The couple's parental rights to their two oldest children -- M.A.M., Jr., who was born on March 31, 2004, and M.H.M., who was born on January 31, 2005 -- were terminated in North Carolina in November 2005. The couple's fourth child, A.M., was born while this litigation was pending, and defendant and M.A.M. executed a voluntary surrender of their parental rights. A.M. remains in the custody of M.A.M.'s grandmother, D.M., and he is not a subject of this appeal.

D.M.M. was born in Woodbury, New Jersey, on August 11, 2006. He was diagnosed at birth with congenital tracheoesophageal fistula and esophageal atresia/stenosis.*fn1 On

August 12, he was transferred to Children's Hospital of Pennsylvania (CHOP) where he underwent surgery to correct the atresia. D.M.M. also suffers from Feingold Syndrome, a rare genetic disorder referred to as "old man's disease," which causes esophageal atresia and abnormalities in the fingers and toes and will likely shorten D.M.M.'s life.

On August 15, 2006, the Division of Youth and Family Services (DYFS or the Division) received a call from Paul Wisner of the Department of Human Services in Philadelphia. He had been contacted by a social worker from North Carolina who informed him that defendant's two older children had been removed from her care due to feeding issues, M.A.M.'s aggressive behavior and the possible mental disabilities of both parents. Wisner expressed concern as to the couple's ability to care for D.M.M. upon release from CHOP.

DYFS requested that D.M.M.'s discharge be delayed until a caseworker could interview defendant and M.A.M. The interview took place on August 17. When questioned about the loss of their parental rights to their two sons in North Carolina, the couple explained that one of their sons was removed from their custody because he failed to thrive due to acid reflux. They further claimed that their other son was removed because M.A.M. threw a shirt at defendant that inadvertently landed by the baby. M.A.M. acknowledged that he had been diagnosed with bipolar disorder and had been prescribed a number of psychotropic medicines.

On August 24, 2006, DYFS filed a complaint for care and custody of D.M.M., which was awarded that same day. Defendant and M.A.M. were ordered to complete psychological and psychiatric evaluations and participate in parenting classes.

On September 1, 2006, D.M.M. underwent surgery at CHOP to repair the fistula. He was discharged on September 6, 2006, to a foster parent, D.F., who was designated by DYFS as a special home service provider. D.F. also had custody of three other foster children, the two oldest of whom she was in the process of adopting.

Defendant was psychiatrically evaluated at the Genesis Counseling Center by Teresa Humaran, M.D. Defendant acknowledged that her parental rights to one of her older sons were terminated because he was diagnosed with failure to thrive. She explained that although she believed she was doing the right things, she simply "did not understand certain things such as feeding 'because she was a new mother.'" Humaran recommended further psychological testing to evaluate defendant's intellectual functioning.

On October 3, Genevieve Chaney, Psy.D., performed a psychological assessment of N.M. Testing revealed defendant's IQ score to be 67, "plac[ing] her overall estimated intellectual abilities at the upper end of the Extremely Low range." Chaney opined that defendant's intellectual limitations called into question defendant's reasoning and judgment, with "[h]er ability to evaluate situations, weigh varying outcomes or actions, and then make sound decisions and respond appropriately . . . likely negatively effected." Chaney concluded that defendant would "function[] best in a highly structured environment."

While Chaney noted that defendant was aware of D.M.M.'s medical condition and "demonstrated basic awareness of milestones in child development," the termination of defendant's parental rights with respect to her two oldest children "raise[d] concerns about her overall parenting abilities." Defendant's slower learning pace could leave her overwhelmed with respect to caregiving, particularly in light of D.M.M.'s medical problems. Chaney diagnosed defendant with Axis II borderline intellectual functioning and concluded that "with support and preparation" she would have "the ability to serve as a caretaker for her son."

Meanwhile, on September 8, DYFS informed defendant and M.A.M. that based upon its investigation, allegations of child neglect were unfounded. DYFS indicated that it would continue to provide services to the family, and defendant and M.A.M. began parenting classes at FamCare. Although they completed the program by November, FamCare's director of education was "unable to assess their true parenting ability because of their limited participation." She recommended individualized parenting counseling, and DYFS referred the couple to The ARC, where individualized classes commenced in January 2007.

At the time, defendant and M.A.M. were sharing an apartment with D.M. The ARC worker and the Division's caseworker noted in home visits that the apartment "was in disarray, cluttered and dirty." The Division's caseworker described defendant and M.A.M as "limited in their abilities" and unable to "carry over what they learned into daily practice."

Defendant and M.A.M. were permitted weekly medically supervised visitation with D.M.M. in their apartment. The ARC worker believed it was unsafe for defendant to carry D.M.M. around because of the number of items on the floor, and, although she worked with defendant to straighten up the apartment, it would be cluttered again by the next visit.

A nurse who attended D.M.M.'s visits reported concern about defendant's ability to care for D.M.M., referencing one incident during which defendant left the boy on a table unattended and D.M. caught him before he rolled off. It was noted that defendant and her mother, who was suggested as a possible alternate custodian for the child, had "very little interaction with" D.M.M. during his visits.

D.M.M. would be taken to his medical appointments by his foster parent who, on occasion, asked defendant to accompany her. On one visit, D.F. permitted defendant to speak to the doctor alone. When she asked defendant what the doctor had said, defendant "laughed and said that she could not remember." Defendant's ignorance of the seriousness of D.M.M.'s medical condition was also reported in April 2007 by the child's supervising nurse. She claimed that defendant and M.A.M. were "clueless about caring for" the child. The nurse explained that although she instructed defendant how to hold the child, she would nevertheless hold him by his arms in an attempt to make him walk. The nurse heard defendant tell the child that "he need[ed] to hurry up and walk because she [did] not intend to carry him," and she saw defendant try to feed the child a cough drop, something that was not medically advisable, given his condition.

On May 18 and 22, 2007, defendant and M.A.M. underwent a parental capacity evaluation conducted by Janet Cahill, Ph.D., at Rowan University. Cahill initially noted that M.A.M. was not receiving the appropriate treatment for his mental illness --schizoaffective disorder, bipolar type -- and "should not have unsupervised contact with" D.M.M. At the time of the evaluation, defendant was six months pregnant with A.M. She explained that she had not thought about the difficulty involved in parenting two children born so close in time. Defendant was unable to identify D.M.M.'s doctors, medications, and physical conditions, but explained that she could feed the child and D.M. would help with the rest. Cahill determined defendant was unable to "describe normal developmental milestones for children" of D.M.M.'s age.

Defendant told Cahill that she was trying to secure her GED but her plans were on hold because her cell phone ran out of minutes while she was talking to a person from the Department of Education and she was unsure how to reach him again. She expressed some interest in obtaining an office job, although defendant also acknowledged that she did not wish to work.

Observing defendant's interactions with D.M.M., Cahill reported that she "engaged in few verbalizations with him[,] . . . did not look for appropriate toys for him[,] [and] did not inquire about his feeding schedule for the day." Defendant "appeared unusually passive and disinterested." Cahill noted that defendant was initially fairly responsive to [D.M.M.] but became more passive as the observation went on.

She appeared increasing[ly] bored and listless. She later verbalized that [D.M.M.] had wet his diaper. However, she made no effort to change it or to look for supplies. She had brought no toys with her.

Towards the end, she simply sat and observed [D.M.M.]. She made little eye contact and had few verbalizations. She appeared most comfortable holding him against her chest.

She demonstrated very little enthusiasm.

She did not engage in any praise.

The results of a personality assessment test indicated that defendant suffered from "impaired empathy, failures in close relationships, suspiciousness, poor control over anger, moodiness, poor interpersonal skills and bitterness." With respect to her parenting skills, Cahill described defendant as "passive and unresponsive" with "an inadequate understanding of safety issues."

Cahill further noted that by the time of the evaluation, defendant had "been exposed to months of intensive and appropriate services." Nevertheless, there was no evidence that she had successfully internalized required skills. Cahill concluded:

This evaluation does not find evidence of significant psychopathology that is expected to interfere with safe and effective parenting at this time. It does find cognitive limitations and deficits in parenting that are expected to interfere with safe and effecting parenting. In my view, these risk factors are so serious that they represent a failure to approach the standard o[f] minimum care, or "good enough" parenting.

Cahill provisionally diagnosed N.M. with Axis II mild mental retardation, and noted that she had problems with her support network, access to healthcare and obtaining an occupation. Cahill recommended against reunification.

In August 2007, during her home visit, the Division's caseworker noted that defendant's apartment was dirty with dishes filling the sink and trash on the floor. During a supervised visitation session on August 21, defendant and M.A.M. argued about who would change D.M.M.'s dirty diaper. M.A.M. fell asleep during the visit and defendant ignored the child, watching "Mr. Rogers" while the nurse and caseworker played with him. In September and October of 2007, home visits revealed that the apartment was again cluttered and dirty, with toys, a bike and a pile of laundry strewn on the kitchen floor. The bathroom was "disgustingly dirty."

Defendant attended individualized sessions at Covenant Counseling beginning in November 2006. While initially attending all sessions, she began to miss her appointments in January 2007. In her discharge summary, dated November 10, 2007, Covenant's social worker noted that "[g]iven [defendant's] cognitive deficit and the history of difficulty parenting it is imperative that services be continued . . . . She and [M.A.M.] will need sustained assistance and monitoring to ascertain that their children's interests are looked after."

On November 5, 2007, Cahill conducted another evaluation of defendant to determine the status of previously-identified risk factors. While defendant believed she was doing well, she expressed frustration with the Division's continued involvement in her life. Defendant stressed that she had addressed many of DYFS's concerns: (1) the house was clean and safe; (2) she was fighting less with M.A.M.; (3) she continued to visit D.M.M. and could describe his medical problems; (4) she took her GED exam; and (5) she was using birth control. Defendant believed "that she had done what she was supposed to."

Cahill determined that "[s]ince the prior evaluation, [defendant] ha[d] made some improvements," but concluded:

However, the key question in this case is whether those new insights have translated into safe and effective parenting that she will be able to parent them independently. Unfortunately, direct observation of [defendant's] parenting still indicates that she is too immature and lacking in basic life skills to handle her children on her own. At the moment, [D.M.] is taking primary responsibility for the children.

[Defendant] interacts with them when she feels like it, but does not have to provide consistent care. This could work for the long term if [D.M.] were younger and willing to make a long term commitment to the children. In my evaluation of [D.M.], I found her to be an effective parent for infants. However her age (73) and her very small stature and limited physical strength will make it very difficult for her to manage older and larger children. [D.M.] also acknowledges that she is very reluctant to make a long term commitment to the children because of her other life priorities. [D.M.] moved in with [M.A.M.] and [defendant] in the hopes that she could mentor them into becoming adequate parents for their children. Unfortunately, this has not occurred. Both parents still exhibit egregious lapses in parenting (e.g. . . .[defendant] not taking responsibility for an early morning feeding). Therefore, [defendant] still does not meet the level of safe and effective parenting at this time.

Cahill recommended out-of-home placement for both D.M.M. and A.M. On November 13, 2007, DYFS filed a complaint for guardianship of D.M.M. *fn2

On March 31, 2008, defendant was psychologically evaluated by James L. Loving, Psy.D. Defendant reported that she had separated from M.A.M. in late February 2008, that M.A.M. moved out of the apartment, and that she was unable to continue living there without his financial help. Defendant moved into a shelter in Glassboro. She once again expressed a desire to obtain her GED and an office-based job, but was unable to articulate any steps she had taken toward those goals. Defendant's sole means of support was public assistance.

Loving noted that "[v]ery much in line with [defendant's] previous evaluations, this evaluation finds her to have (1) no specific psychiatric symptoms or disorders, but (2) mildly limited intelligence, and (3) significant risks for child neglect and possibly child abuse at this time." Although defendant did not have symptoms consistent with any severe psychiatric diagnosis, Loving found that defendant possessed "intellectual limitations that are expected to have an impact on effective parenting," and he expected that she would have trouble with "day-to-day problem-solving and decision-making."

Loving explained:

[Defendant's] intellectual limitations are not severe, but they are accompanied by a sense of emotional immaturity that has contributed to her ineffective parenting until now. Numerous professional descriptions show her to be egocentric and not fully invested in her role as a parent.

Even during fairly brief, professionally supervised visits - when most parents show their "best side" - she has often acted disengaged or disinterested in parenting.

Even after receiving specific and repeated instructions, she has continued to repeat the same sorts of high-risk behaviors . . . . [S]he has been repeatedly described as under-feeding [D.M.M.], even after being encouraged by professionals to give him more than a few bites during feeding time. Her actions appear to reflect some limited appreciation for her son's needs, but even more so, they reflect an unwillingness on her part to place her son's needs ahead of her own immediate interests, as well as a more general difficulty accepting feedback or criticism from professionals. . . . At the current time, she has adequate knowledge about her son's issues and needs to care for him effectively, but I would be extremely concerned about her willingness and ability to tend to those needs effectively for any period of time when they are without professional supervision. There is a very high risk for [D.M.M.] to be underfed, physically untended, and emotionally neglected under [defendant's] care at this time. There is also some degree of risk for physical child abuse, especially if [defendant] finds herself caring for her son without any other adult support, where frustration and stress could overwhelm her limited coping skills.

As of this evaluation, [defendant] shows very limited insight into her parenting-related difficulties. In her view, the only remaining steps that are in the way of successful reunification are to obtain employment and to obtain housing. In terms of employment, it is worth pointing out that her stated plans at this time are essentially the same as those she described in past evaluations: to obtain a GED and find an office-based job. However, she has not completed any concrete steps toward these goals since voicing the same plans to Dr. Humaran 18 months ago. [Defendant] cannot identify any parenting-related difficulties that could use help, and I cannot imagine that any additional parenting skills training would be beneficial at this point. This [is] because, even as she verbally shows more and more detailed understanding of her son's needs and of effective parenting strategies, she will still be at risk for failing to apply that sort of knowledge to her actual parenting behavior.

Loving diagnosed defendant with borderline intellectual functioning and found that she was not "a candidate for safe, successful reunification in the foreseeable future."

Despite significant training and instructions having been provided, Loving observed that defendant "ha[d] continued to demonstrate a variety of neglectful and potentially harmful parenting behaviors, even while under the direct monitoring of professionals." He could recommend no additional parenting services. Additionally, Loving indicated that defendant had "never maintained any period of fully independent, stable housing." He concluded that "[e]ven on a longer-term basis, [defendant] ha[d] a poor prognosis for providing both stable, appropriate, independent housing and safe, effective parenting for her child."

The Division's contact sheets during this time reveal that visitation between defendant and D.M.M. took place in the DYFS office. It was repeatedly noted that defendant would pay minimal attention to D.M.M., often sitting in a chair and watching him play. During one visit, defendant fell asleep and complained that she was bored. During another visit, defendant tried to give D.M.M. candy but was informed by the nurse that he could choke. Defendant responded, "Don't tell me what I can give my son."

During another visit, defendant played a game on her cell phone while her mother sat with D.M.M. At an August 2008 visit, D.M.M. left the visitation room and defendant made no attempt to bring him back into the room with her. When the child was retrieved by an aide, defendant did not interact with him until he began to cry.

In May 2008, Loving performed bonding evaluations of defendant with D.M.M., and D.M.M. with D.F., his foster mother. Loving observed that defendant made some efforts to teach and engage D.M.M., but "the level of parent-child interaction was less than what is typically seen during these sessions." Loving contrasted this with the "fair amount of physical contact and affection" between D.F. and D.M.M.

Loving determined that while D.M.M. was "well-mannered [and] manageable . . . with no obvious emotional difficulties," he suffered from "significant developmental delays" which would require "ongoing, intensive medical supports." Loving found that D.M.M.'s emotional attachment to defendant was "very weak." Based on professional reports of defendant's visitation sessions with D.M.M., Loving concluded that defendant was "physicallypresent for her son" but was "emotionally inconsistent." To the contrary, D.M.M. appeared "to experience a strong, positive, and fairly secure emotional attachment to" D.F.

Loving concluded:

If [D.M.M.'s] relationship and contact with [defendant] were to be severed in the near future, he would not be expected to suffer serious and enduring emotional harm. In fact, he has lived his entire young life outside her care, and by all accounts, he has shown no behavioral or emotional difficulties thus far. . . .

If [D.M.M.'s] relationship and contact with [D.F.] were to be severed in the near future, he would be expected to suffer serious and enduring emotional harm. She has been his primary caregiver for essentially all of his young life thus far, and he shows clear evidence that he views her as his most important attachment figure. Also, as noted already, because of his developmental issues, [D.M.M.] would be expected to have more adjustment problems than the average child his age if he were to endure any major disruptions to his life at this time.

Based on all these findings, it is my strong opinion that it would be in [D.M.M.'s] best interests to maintain him in his current home, with adoption being the permanency goal.

Trial commenced on January 28, 2009 and continued intermittently until April. The Division's caseworker, Courtney Wood, testified and identified various records that were admitted into evidence. Wood was recalled later in the trial and testified regarding the services DYFS had provided to defendant and other placement alternatives the Division had explored.

Loving testified consistently with his reports. He admitted, however, that because a year had passed since the bonding evaluation was completed, he could only offer limited conclusions as to the current state of the bond between defendant and D.M.M., and he could not say to a reasonable degree of psychological certainty what the bond was at the time of trial. Loving explained that he did not expect additional time would enhance defendant's ability to parent D.M.M. and did not anticipate her skills or bond with the child to have changed since the evaluation was completed. Loving opined that allowing defendant additional time to build a relationship with D.M.M. and address her issues would increase the risk of harm to the child by delaying a permanent relationship with D.F.

In contrast to the reports of the Division's workers and service providers, defendant's mother testified that defendant interacted "pretty good" with D.M.M. and was able to care for him and A.M. simultaneously. Two cousins of defendant, as well as her aunt, also testified that defendant frequently babysat their children, took excellent care of them, and interacted appropriately with D.M.M. and A.M. Defendant's mother and two cousins, however, had all been the subjects of referrals to the Division.

Defendant testified that she had obtained a job with Sony in May 2008, but was laid off approximately two months later. In November 2008, she began classes to secure her high school diploma and was scheduled to finish in March 2009. She also claimed that she was continuing to search for employment. Defendant had been living with her mother since June 2008, but believed she would have her own apartment within a month.

Defendant acknowledged that the only alternative placement suggestions she supplied to the Division were D.M. and her mother. It was stipulated that DYFS considered and rejected D.M. as an alternate caretaker for D.M.M. and also ruled out defendant's mother.

On April 17, 2009, the trial judge rendered her oral opinion on the record, finding that DYFS had proven by clear and convincing evidence the standards set forth in N.J.S.A. 30:4C-15.1(a).*fn3 She entered an order terminating defendant's parental rights to D.M.M., and this appeal followed.

II.

Defendant contends that DYFS failed to prove by clear and convincing evidence that her parental rights should be terminated. She argues that the judge based her decision upon "a propensity for unfitness" standard rather than strictly applying the statutory four-prong test.

We review some basic principles. "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "We ordinarily defer to the factual findings of the trial court because it 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." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

When the State seeks to terminate parental rights, it must prove by clear and convincing evidence each of the following four 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 resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) [D.Y.F.S.] 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 In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]

These four prongs "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

(a)

Defendant contends that DYFS failed to prove that she harmed D.M.M. or that she was an unfit parent, i.e., that the Division failed to prove prongs one and two.

When considering the first prong of the best interests test, the court's focus is not "on a single or isolated harm or past harm," but rather "on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. Where there is "a clear record showing a pattern of parental inaction and neglect, amounting to unfitness," N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J.

Super. 576, 615 (App. Div.), certif. denied, 192 N.J. 68 (2007), the courts "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Harm to other children may also be considered when analyzing the risk of harm to a particular child. N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied sub nom., N.J. Div. of Youth & Family Servs. v. R.M., 174 N.J. 39 (2002).

The second prong of the best interests standard "relates to parental unfitness," which may be established by demonstrating that: (1) "[t]he parent is 'unwilling or unable to eliminate the harm'"; (2) "the parent has failed to provide a 'safe and stable home'"; or (3) "a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). "Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance" when determining fitness. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009).

In considering the prong one evidence, the trial judge noted that DYFS need not wait for actual harm to occur before seeking termination. She further observed that when the challenge is to a parent's "lack of capacity to care for a child," the proof must be "based on sound princip[les] [of] both psychology and human development."

The judge compared the circumstances in this case to those presented in N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). In A.G., we concluded that prong one was proven because the defendant failed to take required medication and act appropriately when she did. Id. at 436. Additionally, we noted that "[d]uring the visitation periods, [the defendant] lacked understanding of the basic requirements for parenting." Ibid.

Defendant contends that A.G. is distinguishable because, unlike here, the defendant "require[d] significant medication to function on a daily basis." Ibid. We acknowledge that distinction, but conclude it is without significance. The essential finding of the judge in this case, which was amply supported by the evidence, was that defendant's failure to understand the basic requirements of effective parenting, and to comport her behavior to those standards, presented a clear and convincing risk of harm to D.M.M.

As to prong two, the trial judge found that defendant was "not now in any position to provide a safe and stable home for" D.M.M. The judge also determined that "[a]ny further delay in placement . . . can only add to the harm to [D.M.M.] as every child really requires for ongoing health to be in a permanent home, a source of nurturance and support." Additionally, we note Loving's opinion that defendant was unable to eliminate the risks of harm to D.M.M. through the provision of additional services. While defendant may have genuinely wished to eliminate the chance that she would cause harm to D.M.M., the evidence suggested that she was unable to do so. K.H.O., supra, 161 N.J. at 352. The Division satisfied its burden of proof as to prong two.

(b)In point I(B), defendant contends only that the admission of various reports by the Division's service providers demonstrates "an institutional bias and unsupported hearsay incriminations . . . that . . . clearly show[] that DYFS was not committed to the success of its reunification effort."*fn4 We have difficulty discerning the argument. Nonetheless, we conclude that DYFS adduced sufficient proof to establish prong three of the best interests standard.

Provision of services under the third prong "contemplates efforts that focus on reunification," K.H.O., supra, 161 N.J. at 354, and may include "consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." M.M., supra, 189 N.J. at 281. The reasonableness of the Division's efforts "is not measured by their success." D.M.H., supra, 161 N.J. at 393.

The judge found that DYFS had made reasonable efforts to provide defendant with necessary services, noting counseling at

The ARC and Covenant Counseling, the early evaluations that led to those services and the transportation and nursing services provided by the Bayada nurses. The judge also concluded that DYFS made sufficient efforts to find alternate familial placement for D.M.M. We find no reason to disturb the judge's findings and conclusions with respect to prong three.

(c)

Relying upon J.N.H., supra, 172 N.J. at 477-78, defendant contends that Loving's evaluations were stale and could not support a finding as to prong four. This argument was not presented to the trial judge, but we nevertheless conclude it is without merit.

The statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. The court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. "[A]fter considering and balancing the two relationships," the question becomes will "the child . . . 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[?]" Ibid. Answering that question "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. (citations omitted). Adequate proof as to prong four does not and "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid.

As to the effect upon D.M.M. of severing defendant's parental ties, the judge could not "articulate any particular harm to [D.M.M.] other than the inherent loss of a relationship with a biological parent." Although she did not discuss Loving's findings regarding D.M.M.'s bond with his foster parent in analyzing this prong, it is implicit that the judge accepted Loving's opinions, finding them credible and not "contradicted" at other points during her opinion.

Defendant's reliance upon J.N.H., supra, is misplaced. There, the Court was "not satisfied that the trial court had sufficient evidence before it to decide the Rule 4:50 motion" seeking to set aside a previously entered termination judgment. J.N.H., supra, 172 N.J. at 479. The Court noted that the defendant had made significant progress in her life, and had produced expert testimony seriously questioning the validity of the expert opinion offered by DYFS at the time the termination order was entered. Id. at 476-79.

Here, Loving's bonding evaluations were only ten months old. Moreover, he testified that nothing had occurred in the interim to demonstrate a change of circumstances causing him to modify his initial conclusions, and defendant offered no proof to the contrary. The evidence was sufficient to prove prong four.

III.

In her second point, defendant contends that since both Cahill and Chaney were not called as witnesses at trial, the judge erred by admitting their reports into evidence over her objection.

Rule 5:12-4(d) permits DYFS "to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." "By its plain terms, this rule only authorizes the admission into evidence of a DYFS professional consultant's report 'pursuant to' N.J.R.E. 803(c)(6) and 801(d), which set forth the so-called 'business records' exception to the rule against hearsay." N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 129 (App.Div. 2010). "Under the business records exception to the hearsay rule, a party seeking to admit a hearsay statement . . . must demonstrate that 'the writing [was] made in the regular course of business,' the writing was 'prepared within a short time of the act, condition or event being described,' and 'the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 347 (2010) (alteration in original) (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985)).

Defendant does not argue that Cahill's and Chaney's reports do not qualify as business records. Instead, she argues that they did not meet the requirements of N.J.R.E. 808 because they were not trustworthy.

N.J.R.E. 808 provides:

Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.

The judge did not directly address this Rule, but we note the following. Both Cahill and Chaney were "professional consultants" hired by DYFS to evaluate defendant. See R. 5:12-4(d). We have noted that "reports by . . . staff personnel (or affiliated medical, psychiatric, or psychological consultants), prepared from their own first-hand knowledge of the case, at a time reasonably contemporaneous with the facts they relate . . . supply a reasonably high degree of reliability as to the accuracy of the facts contained therein." In re Guardianship of Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969). We conclude that the reports did not run afoul of N.J.R.E. 808.

Lastly, even if the two reports, or more to the point, some of their contents, were inadmissible hearsay, their admission was harmless error. Loving personally conducted an evaluation of defendant and testified extensively at trial. He was subject to cross-examination, and the judge cited his testimony as basis for her conclusions. That evidence alone was sufficient for DYFS to prove its case.

IV.

In Point III, defendant argues for the first time that the judge committed plain error by permitting Loving to respond to the Division's "specious hypothetical" with an inappropriate net opinion.

During Loving's direct examination, the Deputy Attorney General reviewed D.M.M.'s physical infirmities and asked if the witness was familiar with them. In general, Loving indicated that he was. The following exchange then took place:

Q. All right. If I told you this child had all those things, would this child be at risk if placed in [defendant's] care with her level of capability of parenting?

A. It might be that he would.

Q. Okay. Can you quantify the risk?

A. I would [say] high risk. High risk particularly for neglect or more specifically neglect of his needs, again, not necessary because she lacks information, but because she has shown an inability to apply that information and care for him effectively even when she's been given the opportunity.

Defendant contends that Loving's response to the hypothetical constituted an improper net opinion because he lacked the specialized medical knowledge necessary to respond. The argument lacks sufficient merit to warrant extensive discussion.

R. 2:11-3(e)(1)(E).

Because there was no objection at trial, reversal is required only if there was error "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Loving had an understanding of the additional demands D.M.M.'s physical problems would place upon defendant's parenting ability. He was fully qualified to opine that the risk defendant would neglect her son would increase as a result.

Affirmed.


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