March 31, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
T.D. AND D.H., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF A.H. AND J.H., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-0019-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 14, 2011
Before Judges Lisa, Reisner and Alvarez.
In these consolidated appeals, T.D., the mother, and D.H., the father, appeal from the January 11, 2010 judgment of guardianship terminating their parental rights to their son, J.H., and their daughter, A.H. J.H. was born on January 31, 2006, and we will refer to him in this opinion by the fictitious name "Johnny." A.H. was born on June 18, 2007, and we will refer to her in this opinion by the fictitious name "Amy."
Appellants argue that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of proving all four prongs of the best interests of the child test. The Division disagrees, and the Law Guardian, who supported termination in the trial court, joins the Division on appeal in urging us to affirm the termination order. We are satisfied from our review of the record that the Division presented sufficient evidence to support Judge Farber's finding that all four prongs were clearly and convincingly established. Therefore, we affirm.
DYFS initially became involved with the family in July 2006, when it received a referral indicating that both parents were using and selling drugs and not properly caring for Johnny, who was then six months old. Although DYFS found the allegations to be unfounded, it referred both parents for substance abuse evaluations, and they both provided negative urine screens. Due to incidents of domestic violence, T.D. signed a case plan in September 2006 agreeing to seek a restraining order against D.H. and also agreed to obtain suitable housing with the assistance of social services, to whom she was referred by DYFS.
However, T.D. and D.H. reconciled in October 2006 and took up residence with D.H.'s mother. In the ensuing weeks, D.H.'s mother and sister reported to the Division that they believed T.D. was using drugs and not properly caring for the baby. On November 2, 2006, a DYFS caseworker learned from Johnny's pediatrician that Johnny had only one immunization and was overdue for several others. In August, T.D. had reported to the Division that Johnny had been vomiting his food, but T.D. did not comply with the instructions she was given to follow up with this problem. On November 8, 2006, a DYFS caseworker met with T.D., Johnny and a nurse for consultation. T.D. was instructed to maintain a notebook to correlate what foods Johnny was given and when he vomited. The caseworker referred T.D. to Family Preservation Services (FPS) to assist her with this problem. FPS provided in-home counseling and parenting skills services to both parents. However, despite these efforts, T.D. failed to keep a scheduled appointment with the pediatrician on November 16, 2006.
On November 18, 2006, it was reported to the Division that T.D. had been arrested and was released on bail. According to D.H.'s mother, T.D. was using drugs, the place she was staying with Johnny lacked hot water and a refrigerator, and Johnny was sleeping on the couch. At about this time, D.H. had also been arrested and remained in custody on outstanding warrants.
A home visit confirmed the inadequate living accommodations. The caseworker also observed that the apartment was being heated with space heaters. She told T.D. they were unsafe. A follow-up visit to T.D. on November 20, 2006, revealed the same deficiencies in the living arrangements. The caseworker accompanied T.D. and Johnny to the pediatrician. The doctor told T.D. that she should be feeding Johnny formula five times a day, plus baby fruits and vegetables three times a day. Johnny exhibited signs of failure to thrive, and the doctor made referrals for blood work and chest x-rays. T.D. was again instructed to maintain a food log and record any vomiting or loose bowel movement episodes. A follow-up visit was scheduled for a week later.
On November 21, 2006, the caseworker arrived at T.D.'s apartment. Johnny was wearing only a diaper and lying on the couch next to T.D.'s teenage sister, who was smoking a cigarette. T.D. had not followed through to make arrangements for the blood work and x-ray. She had also not administered the medicine that had been prescribed for Johnny on November 6, 2006. There was still no heat in the apartment other than space heaters. DYFS determined that an immediate removal was necessary because Johnny's medical and environmental needs were not being met. The removal was accomplished pursuant to N.J.S.A. 9:6-8.29, and an order was entered to that effect on November 27, 2006. DYFS then had the results of a November 20, 2006 urine screen provided by T.D. that was positive for cocaine.
Both parents continued to use drugs. They were sporadic in attending substance abuse evaluations and tested positive from time to time for cocaine and opiates. On January 10, 2007, T.D., while five months pregnant with Amy, admitted she was then using drugs. D.H. also admitted to using crack cocaine at that time. Both parties were referred for treatment. T.D. was referred to Sunrise House, where she could move into inpatient treatment or a Mommy and Me program if warranted. In the ensuing months, both parents participated in drug counseling. They were living in a motel due to an electricity problem at their apartment. D.H. was also referred for anger management counseling and couples counseling with T.D.
T.D. gave birth to Amy on June 18, 2007. Drug screens were negative for mother and daughter. For this reason and because both parents were cooperating with services, the Division authorized Amy to be released into her parents' custody. Johnny was also returned to their custody on August 16, 2007. The Division arranged for FPS workers to be in the home to provide assistance.
On October 3, 2007, D.H. tested positive for morphine and opiates. On October 15, 2007, T.D. tested positive for opiates. Appellants provided several unconvincing explanations for these test results. They said, for example, that legal prescription drugs or the consumption of a poppy seed bagel were the cause.
On October 25, 2007, neither parent appeared for a scheduled court review. The court ordered that both parents complete substance abuse evaluations and follow all treatment recommendations, submit to random urine screens, attend counseling at the Center for Evaluation and Counseling (CEC), and insure that the children were seen by their pediatrician for all well checks and sick visits.
On November 20, 2007, T.D. tested positive for cocaine, and a day later D.H. tested positive for morphine and opiates. D.H. blamed his results on taking Theraflu and Robitussin DM, but DYFS confirmed that neither medication would cause such results.
On December 7, 2007, the Division filed an amended order to show cause seeking removal of both children. The court entered the order and the children were removed on that date. After a brief stay in a temporary foster placement, they were placed on December 12, 2007 with foster parents with whom they have remained ever since. These foster parents wish to adopt both children.
After several months in foster care, Johnny was diagnosed with an allergy to milk and dairy products, and to soy. He was placed on a special diet.
The Division referred the family for therapeutic supervised visitation. Both parents had weekly two-hour visitation with the children. They were both compliant and consistent with visitation, and acted appropriately with the children.
On January 17, 2008, T.D. began inpatient treatment at Sunrise House. However, on January 23, 2008, D.H. informed DYFS that T.D. was incarcerated. He also advised that he would start drug treatment at CEC on January 31, 2008, and that he had been attending Narcotics Anonymous meetings. However, on February 5, 2008, CEC informed DYFS that D.H. had not begun treatment. D.H. continued in his noncompliance, and CEC closed his case on February 27, 2008.
On March 18, 2008, a DYFS caseworker visited T.D. in jail. She promised that upon her release she would attend CEC for counseling, obtain employment, and attend substance abuse treatment. The caseworker explained to her the guidelines in the Adoption of Safe Families Act (ASFA), 42 U.S.C.A. § 675(5)(C) and (E), noting that Johnny had been in placement for thirteen months, and that T.D. would need to do the necessary work toward reunification promptly upon her release. The next day, the caseworker met with D.H. and also explained to him the ASFA requirements. He again said he would attend drug counseling at CEC.
T.D. was released from jail on April 30, 2008. A caseworker visited both parents on May 6, 2008. Both parents again agreed to participate in counseling and substance abuse treatment, but they remained noncompliant.
On June 3, 2008, DYFS filed a guardianship complaint against both parents. The court approved a concurrent plan of reunification with D.H. and termination of parental rights.
In the ensuing weeks, D.H. continued to be noncompliant with substance abuse treatment at CEC. In August 2008, both parents were incarcerated. When visited in the jail, T.D. told a caseworker she planned to request to enter a Mommy and Me program at her scheduled September 9 criminal court appearance. The caseworker advised her that DYFS would not recommend this based on the filing of the guardianship complaint. D.H. informed the caseworker that he had relapsed, planned to resolve his criminal charges, and would then embark on an inpatient program.
T.D. was released from jail in December 2008, and she entered an inpatient program at Integrity House as part of her compliance with drug court obligations. D.H. was released in January 2009, and he began outpatient treatment. Visitation resumed in January 2009.
D.H. was successfully discharged from outpatient treatment on March 9, 2009, and admitted into an aftercare program. He successfully completed the program on May 14, 2009. His urine screens through that time were negative.
T.D. completed the first phase of the Integrity House inpatient program and moved into the second phase transitional living program. However, she left the halfway house in June 2009, citing the presence of drugs and physical violence at or in the vicinity of the program. As a result, she was arrested on June 28, 2009 for violating probation, and she was returned to jail. The criminal court ordered her to return to Integrity House in August 2009, and when the guardianship trial began on October 19, 2009, she was living there. However, during the course of the trial, T.D. was administratively discharged from Integrity House for rule violations, her whereabouts became unknown, and a warrant was issued for her arrest. On October 15, 2009, four days before the guardianship trial began, D.H. tested positive for opiates. As a result, he was sanctioned with a seven-day incarceration in November 2009.
DYFS had explored relative placement options over the course of these events. It ruled out several family members for various reasons. All of this information was presented to the court at trial.
Three psychological experts testified at the trial, and their reports were received in evidence. The Division produced Dr. Mark Singer. The Law Guardian produced Dr. Frank J. Dyer.
T.D. produced Dr. Avanente Tamagnini. We will summarize the evaluations they performed and the opinions they rendered.
Singer conducted two separate psychological and bonding evaluations of both parents. The initial evaluations were conducted in late 2008 and early 2009, and he conducted follow-up evaluations on June 9, 2009. At that time, he also conducted bonding evaluations with the children, and on July 1, 2009, he conducted bonding evaluations between the children and foster parents.
After the initial evaluations, Singer concluded that D.H. was not a parenting option, and at that time, T.D. was more likely to become a viable parenting option. He recommended that she continue to participate in drug treatment and that DYFS should explore "fast-tracking" her into a Mommy and Me program, in which she could care for the children under appropriate supervision. Singer noted that if the couple reunited there would be a significant risk of relapse. Through therapy, T.D. needed to clarify her relationship with D.H. and demonstrate an understanding of the children's medical needs and obtain appropriate housing and employment before being discharged from a Mommy and Me program. The Division, however, did not place T.D. in a Mommy and Me program, because Integrity House recommended a different aftercare program for her.
After T.D.'s follow-up evaluation, Singer concluded that she lacked the resources needed to parent the children. He noted that she acknowledged this limitation. He opined that she was not likely to become a viable parenting option in the foreseeable future. Although she had been given additional time to make improvements, she was having difficulty creating stability in her own life.
Singer found that D.H. was a dependent individual and would have difficulty meeting the dependency needs of others. D.H. also would have difficulty controlling his use of alcohol and illegal substances. He was an impulsive individual who exploited others to meet his personal needs. He was likely to fail in establishing long-term stability in his own life. He had a poor self-image and ongoing feelings of anxiety and depression. Singer concluded that D.H. was not likely to become a viable parenting option in the foreseeable future.
With respect to the bonding evaluations, Singer noted that Johnny understood who T.D. and D.H. were, but there was anxiety and conflict in his relationship with them. He did not have a secure attachment with them, but viewed his foster parents as his central parental figures. By that time, Johnny had been living continuously with his foster parents for nearly two-andone-half years, and they had become his psychological parents.
In contrast, Amy was just two years old, an age at which attachments are becoming solidified. While she had a level of comfort with all four of the adults, her attachments likely had not solidified and she might be transitioned into another home without creating significant and enduring harm. However, Singer did not believe that either biological parent could effectively parent Amy, and Amy had formed the foundation of a secure attachment with her foster parents.
Singer opined that neither child was likely to experience a significant and enduring reaction should their relationship with their parents be severed. Both would have some reaction to the loss, but their relationship with their foster parents would mitigate the harm, as a result of which no enduring harm would likely result. Johnny would probably experience a significant adverse reaction if his relationship with his foster parents were severed, and he could be expected to regress emotionally and behaviorally, and in the long term would likely experience feelings of loss, insecurity, and difficulty in establishing and maintaining healthy relationships. Amy would probably have a significant adverse reaction to the loss of her relationship with her foster parents. While she might not experience enduring harm due to her young age, the foundation of a secure parent-child attachment between her and her foster parents had been established and "the window during which such an attachment becomes solidified [was] quickly closing." Finally, her relationship with her parents would not be expected to mitigate the harm.
Singer concluded that, based upon the totality of his evaluations of all of the affected individuals, the children should be permitted permanency and consistency through adoption by their foster parents. Neither T.D. nor D.H. could provide them with the needed permanency, consistency and stability in the foreseeable future. He noted that both parents continually experienced relapses, and the more relapses one has, the less likely a favorable prognosis for successful treatment. He viewed the prospects of success in achieving and maintaining sobriety to be very doubtful.
In June 2009, Dyer conducted individual psychological evaluations of both parents, bonding evaluations of the children with each parent, and a bonding assessment with the foster parents.
Dyer concluded that T.D. was "passive and dependent" and appeared "reasonably well established in her process of recovery at that time." Although she showed no signs of current drug use, she had a chronic and severe drug addiction that required intensive support and monitoring. Historically, she would achieve sobriety with the help of treatment, but then repeatedly relapse.
Dyer found that the implications of T.D.'s psychological profile were "mixed with respect to parenting capacity." She needed to develop an independent support system to reduce her dependency on D.H., become more stable in her recovery, and acquire enhanced coping skills. Dyer was of the view that T.D. lacked the ability to parent her children and presented a moderate risk for harming them. T.D. was at an early stage in her recovery. He found no bond between T.D. and the children, and felt there was no value in a Mommy and Me program at this stage of T.D.'s recovery.
Dyer found that D.H. had a serious substance abuse problem and a borderline personality. He was a poor candidate to parent. Although he might act in an appropriate and nurturing manner, he would be unable to handle the day-to-day task of parenting. Dyer found a positive emotional tie between D.H. and the children, but nevertheless concluded that D.H. was not an appropriate parent.
Based upon his bonding evaluation, Dyer found that the foster parents were the children's psychological parents. The children had a need for permanency. If Johnny were removed from his foster parents, he would suffer from impaired trust, lowered self-esteem, and incapacity to form new relationships. While T.D. and D.H. could not mitigate the harm if the children's relationship with their foster parents were terminated, the foster parents could mitigate the emotional harm of the children losing their relationship with their birth parents.
Tamagnini was T.D.'s psychological expert. He evaluated her twice, on February 20, 2009, and again on October 2, 2009. He also conducted a bonding evaluation between T.D. and the children. However, he did not conduct a bonding evaluation with the foster parents.
Tamagnini noted that T.D. was experiencing repeated episodes of persistent loss of appetite and sleep disturbance, stomach problems, social withdrawal and irritability, elevated mood, increased energy level, and racing thoughts. She had experienced several anxiety or panic attacks. He recognized her history of repeated relapses into drug use. He felt that if she continued to work hard and maintain her sobriety, it would be beneficial for the children to continue to visit her, even without supervision. However, he expressed the view that T.D. "must prove to herself and to her children that she can maintain long-term sobriety in order for the children to be able to reunite with her in the future." He noted that T.D. acknowledged that she was not ready to parent, but felt that she was working toward goals to help her reunite with her children. Tamagnini concluded that "it might be important to accept [T.D.]'s progress and sobriety as a small, forward step toward reunification."
As to the bonding evaluation, T.D. evidenced a strong bonding with her children, but Tamagnini concluded that "it might be a physical and emotional risk for [T.D.] to have custody of [Johnny] and [Amy] at this time." He felt that continued visitation would be appropriate and that termination of visits with T.D. would cause the children serious and enduring harm. Tamagnini recommended that DYFS maintain supervised visitation, ensure that T.D. was compliant with treatment recommendations, have T.D. submit to random urine screens when she was released from treatment, and have her undergo a psychiatric examination in order to determine whether medication was appropriate.
Tamagnini identified T.D.'s most significant problem as the risk of relapse. Because there had already been one separation and reunification with Johnny, he noted that there would have to be procedures in place to ensure that T.D. adhered to all of DYFS's suggestions. Her success would be determined with her compliance with services, and she would have to want to be free of drugs. If she could remain drug free on a long-term basis, she had the capacity to parent. However, Tamagnini opined that reunification should not be immediate and should not be considered until T.D. would be sober for at least one year and compliant with all recommendations.
As we stated, Tamagnini did not conduct a bonding evaluation with the foster parents. He therefore was not in a position to compare the relative harm between severing the children's relationship with their parents as opposed to their foster parents.
In a comprehensive oral opinion issued on January 11, 2010, Judge Farber made detailed findings of fact and concluded that the Division satisfied the statutory criteria for termination of the parental rights of both parents. He relied heavily on Dyer's and Singer's testimony, which he found credible. He entered judgment accordingly, and this appeal followed.
The right of parents to a continued relationship with their children is protected by the federal and state constitutions. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However, "[p]arental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
The best interests of the child standard represents the State's balancing of these two interests. Ibid. In accordance with the Court's holding in A.W., supra, 103 N.J. 591, the Legislature has set forth the following test to determine whether parental rights should be terminated:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1a.]
DYFS bears the burden of proving all four prongs by clear and convincing evidence. A.W., supra, 103 N.J. at 611--12. These four criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.
Appellate courts are limited in their review of trial court decisions to terminate parental rights. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If the decision is "supported by adequate, substantial, and credible evidence in the record" the appellate court must defer. Ibid. Further, because of the particularized expertise of family court judges in family matters, we accord enhanced deference to family court factfinding. Cesare v. Cesare, 154 N.J. 394, 411--13 (1998).
Applying these principles and standards of review, we now consider appellants' arguments with respect to each prong.
Under the first prong, the Division 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." Id. at 352.
T.D. argues that DYFS did not present the required substantial credible evidence of the type of harm required. She contends that although her drug use exposed her children to the potential for harm, drug use by a parent, in and of itself, does not establish that a child was harmed by a parent. D.H. argues that DYFS failed to produce any evidence of harm to the children as a direct result of the relationship between him and the children. We do not agree. The record supports the finding that DYFS proved by clear and convincing evidence that the children'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 a 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); A.W., supra, 103 N.J. at 605. 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." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). 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.
Appellants argue that their drug use alone did not harm the children. However, the absence of physical abuse is not conclusive. A.W., supra, 103 N.J. at 605. Their actions and neglect resulting from their continued drug use endangered the children's safety and well-being. K.L.F., supra, 129 N.J. at 44.
Appellants assert that the court did not identify the "actual harm" the children suffered. However, a court "need not wait until a child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383. Here, the court noted that at the time of Johnny's first removal in November 2006, D.H. was incarcerated. T.D. tested positive for cocaine and had failed to take Johnny, who had several medical issues, to his doctor's appointments. A home inspection had revealed safety and health concerns, such as the lack of a refrigerator and the use of space heaters within the child's reach. Johnny was reunited with appellants after Amy was born. However both parents were using drugs in the fall of 2007 while caring for the children, and lied about their drug use. Although the children were apparently not harmed by their drug abuse, the court's findings clearly support the conclusion that if they lived with appellants in the future, a significant potential for harm would exist.
T.D. argues that drug use by a parent, in and of itself, does not constitute harm, citing K.H.O., supra, 161 N.J. at 349-51. However, K.H.O. is inapplicable here, as it held that drug use during pregnancy does not constitute harm to a child under N.J.S.A. 30:4C-15.1(a)(1). K.H.O., supra, 161 N.J. at 349. K.H.O. did not address the situation of drug use by parents after a child is born. Ibid.
D.H. argues that he was not present in the home at the time of the first removal, and thus evidence from that removal cannot be used to satisfy prong one against him. However, D.H.'s drug use is enough to satisfy this prong without the evidence from the first removal. In addition, the reason he was not in the home at the time of the first removal was because he was in jail.
There was sufficient credible evidence in the record to support the trial court's finding that the children's safety, health or development was harmed by their relationship with appellants. Judge Farber did not err in so finding.
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). 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 Division 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." Id. 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.]
T.D. argues that the trial court's finding was not supported by the evidence because she had been successful in overcoming her addiction for long periods of time, with only brief relapses. She also argues that her decision to leave her halfway house exhibited her commitment to a drug-free lifestyle. D.H. argues that he made great strides in dealing with his substance abuse while involved with DYFS, and his positive urine test just before trial "should be viewed as an unfortunate single relapse given the burden of proof in termination cases rests with the state." We are satisfied that Judge Farber's finding that appellants were unable to eliminate the harm and provide a safe and stable home for the children was supported by clear and convincing evidence.
The judge found that due to each of appellants' ongoing issues, neither parent currently or for the foreseeable future was able to eliminate the harm. Since the summer of 2006, both parents had inconsistent housing, had been in and out of relatives' homes, in and out of jail on multiple occasions, and in and out of treatment facilities. T.D. had been unemployed fairly consistently during that time. They also both had multiple relapses and criminal arrests, and T.D. twice left her halfway house without permission.
At the time of trial, T.D. had been in and out of jail, had left her halfway house, and her whereabouts were unknown. D.H. tested positive for opiates and morphine four days before the start of trial, and was sanctioned with a seven-day incarceration. There was clear and convincing evidence that both appellants had unresolved substance abuse problems, unstable housing, and criminal history.
We find no error in the court's finding that DYFS satisfied the second prong, based on clear and convincing evidence to support the finding that defendants were unable to eliminate the harm to the children or to provide them a safe and stable home. K.H.O., supra, 161 N.J. at 348-49.
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).
T.D. argues that DYFS failed to satisfy this prong because most of the services listed by the trial judge were not services designed to remedy the cause of the children's removal. Visitation is mandated by statute, and medical services and therapy for the children, as well as visits to the foster home and field visits to their hospitals were required as DYFS had taken custody of the children. The children were removed because of their parents' drug use, and thus the service that was required was effective drug treatment. T.D. is critical of DYFS in this regard because it made no attempt to comply with Singer's 2008 suggestion to place T.D. in a Mommy and Me drug treatment program. D.H. also argues that the limited services provided by DYFS were insufficient to remedy the issues DYFS identified as warranting termination of parental rights. We find these arguments unpersuasive.
"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 monitor services, change them as needs arise, and identify and strive to overcome "barriers to service provision or service utilization." D.M.H., supra, 161 N.J. at 387. 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. Id. at 390. Evaluation of DYFS's efforts to reunite a particular family must be done on a case-by-case basis. Ibid. 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).
There was sufficient evidence in this case that DYFS made reasonable efforts to reunite appellants with their children. The children were removed due to appellants' substance abuse, and T.D.'s inability to handle Johnny's medical issues. To this end, DYFS provided the following services: referring appellants for substance abuse evaluations; recommending and encouraging compliance with substance abuse treatment; referring defendants for CEC evaluations; arranging for FPS to work in the home; recommending domestic abuse services for T.D. and anger management for D.H.; arranging for visitation; providing transportation for visits and evaluations; encouraging application to social services; referring appellants to parenting classes; and encouraging appellants and providing suggestions when they failed to attend an evaluation or session.
We reject T.D.'s argument that prong three was not satisfied because DYFS made no attempt to comply with Singer's 2008 recommendation for a Mommy and Me program. DYFS should not be faulted in that regard. The Mommy and Me program was not the type of aftercare program recommended by Integrity House, and DYFS followed Integrity House's recommendation. This was not unreasonable.
Appellants also argue that the court did not properly consider placement alternatives. Specifically, they argue that neither DYFS nor the court considered kinship legal guardianship (KLG) as an alternative to termination of parental rights. T.D. also argues that the judge erred because he did not personally evaluate DYFS's claim that the relatives presented were not appropriate placements.
The court must apply the best interests of the child standard in determining whether a relative placement is appropriate. N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 527 (App. Div. 2003); State ex rel. L.L., 265 N.J. Super. 68, 77 (App. Div. 1993). "In reviewing a child's placement, courts must determine whether 'such placement ensures the safety and health and serves the best interest of the child.'" M.F., supra, 357 N.J. Super. at 528 (citing N.J.S.A. 30:4C-51; In re E.M.B., 348 N.J. Super. 31, 52 (App. Div. 2002)). It is also "well established that it is the Division's policy to place children with relatives whenever possible." M.F., supra, 357 N.J. Super. at 527. However, there is no presumption in favor of placement with a relative as opposed to a third party. Id. at 528-29.
A parent may request KLG as an alternative to termination, but the decision whether to seek this alternative disposition rests with DYFS and the court. N.J.S.A. 30:4C-87. Similarly, any permanency plan proposed by DYFS is subject to independent judicial review. In re C.R., 364 N.J. Super. 263, 276 (App. Div. 2003), certif. denied, 179 N.J. 369 (2004). And, KLG is only available when adoption is not possible. N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 512-13 (2004). That circumstance was not present here, and KLG was not a viable option.
We are satisfied that the court did not err in finding that DYFS had established this prong in that it considered alternative placements for the children. We also reject T.D.'s argument that the court erred because it did not personally evaluate DYFS's claim that these relatives were inappropriate caregivers for the children. The court satisfied its statutory responsibility under N.J.S.A. 30:4C-15.1(a)(3) when it noted that DYFS had ruled out relative placements, and reviewed the reasons for those decisions. The judge appropriately accepted DYFS's evidence on each of these relatives.
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.
The overwhelming and undisputed evidence established that the children, who were placed in their foster care home in December of 2007, needed permanency and that appellants were not in a position to parent the children. The issue is ultimately not what is best for appellants, but what is best for the children, which, as the court found, was termination, because it freed the children for adoption by their foster family. Id. at 355. There was no indication that appellants could rectify the impediments to reunification, nor was there any indication that they could provide a safe, permanent, stable home for the children, and thus termination of parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1.
Johnny is now nearly five-and-one-half years old, and Amy is almost four. They have been living with their foster family for nearly three-and-one-half years and view them as their psychological parents. Their foster parents wish to adopt them. No expert supported immediate reunification of the children with their parents.
Singer testified that neither child would have a significant or enduring reaction if their relationship with their parents were severed. While both children would likely have a reaction to the loss, their relationship with their foster parents would likely mitigate the harm. The children did not see their parents as consistent parental figures, and both parents had histories of instability and substance abuse. Neither parent could make the necessary changes to be able to parent within the foreseeable future.
As to T.D., Dyer testified that that he found no bond between T.D. and the children. He found that she was at an early stage in her recovery, and did not have the ability to parent at the time of trial. Dyer found that D.H. had a serious substance abuse problem and was a poor risk to parent because he would be unable to handle the day-to-day tasks of parenting. Dyer testified that while the parents could not mitigate the harm if the children's relationship with their foster parents were severed, the foster parents could mitigate the emotional harm of the children losing their relationship with their birth parents.
T.D.'s own expert, Tamagnini, testified that reunification should not be immediate. He was concerned about T.D.'s sobriety and her history of relapse, and noted that because there had already been one reunification with Johnny, there would have to be procedures in place to ensure that T.D. adhered to all of DYFS's requirements. T.D. had the capacity to parent, but only if she remained drug free. She would need to be sober for one year and compliant with all recommendations before reunification could occur. Tamagnini did not perform a comparative bonding evaluation with the foster parents.
It is clear to us that Judge Farber did not err in finding that DYFS satisfied the fourth prong.
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