May 31, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES PLAINTIFF-RESPONDENT,
K.T.T. AND W.R., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF T.L.K. AND T.L.T.R., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-201-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 13, 2011
Before Judges Fuentes, Ashrafi and Nugent.
Defendant K.T.T., who is the mother of two girls now ages seven and three, and W.R., who is the father of the younger girl, appeal from judgments following trial terminating their parental rights.*fn1 We affirm.
The Division of Youth and Family Services (DYFS) had initial contact with K.T.T. in 1986 when she was five years old. K.T.T. was placed in foster homes and youth shelters from the time she was fourteen. Several psychological evaluations diagnosed her as mildly mentally retarded. She also had several psychiatric hospitalizations to treat active psychosis. During this litigation, K.T.T. was receiving services through the Department of Developmental Disabilities (DDD).
K.T.T. first gave birth to a child in 2001. A hospital social worker called DYFS to report concerns about her ability to care for the newborn. DYFS arranged psychological, neuro- psychological, and psychiatric evaluations. The three evaluations confirmed her mild mental retardation. In September 2004, K.T.T.'s parental rights to her first-born child were terminated by judgment of the court.
In December 2003, K.T.T. gave birth to the older child involved in this appeal. She had received no prenatal care. The hospital discharge summary noted that K.T.T. "was irrational during delivery and during a visit to the nursery." A urine screen during delivery tested positive for cannabis and opiates secondary to morphine.
The baby was released into the care of her father. In November 2005, the court appointed a paternal cousin as the child's kinship legal guardian because K.T.T. and the child's father had not made themselves available for services, nor expressed any interest in caring for the child. The kinship legal guardianship ended in March 2008 with the death of the paternal cousin. DYFS then placed the child with a paternal relative where she remained at the time of trial in this case. The older girl's caretaker wants to adopt her.
From November 2005 through January 2007, K.T.T. was incarcerated, eventually entering a plea of guilty to a charge of theft. In February 2008, about thirteen months after her release from jail, K.T.T. gave birth to the younger girl involved in this litigation. She identified W.R. as the father. The hospital reported the birth to DYFS, stating that K.T.T. was under DDD supervision, did not have appropriate housing, and had no means of supporting the baby.
DYFS contacted the DDD caseworker. That individual believed K.T.T. was not competent to raise a child. She was living in a rooming house with W.R., was unemployed, and had no means to support a baby. W.R. was not receiving services, but the DDD caseworker had met him and thought he might have mental health problems that impaired his ability to function as a parent. Also unemployed, W.R. received Social Security Insurance (SSI) benefits.
At the hospital, K.T.T. provided false information to the DYFS caseworker about who was caring for her two older children and where she lived. She said she had received prenatal care before the birth of the third child but was unable to give the name of her doctor. K.T.T. denied any mental illness and said she had been diagnosed incorrectly. She also said she did not need any additional services from DDD. W.R. told the DYFS caseworker that he had not looked for work because he did not want to leave K.T.T. alone during her last months of pregnancy.
After DYFS confirmed that K.T.T. actually lived at a rooming house with W.R., she persisted in claiming that her address was the incorrect one she had given. A criminal background check disclosed that W.R. was a convicted sex offender, having pleaded guilty in 1992 and been sentenced to seven years in prison on charges of first-degree aggravated sexual assault, endangering the welfare of a child, sexual assault, and unlawful possession of a weapon. The charges arose from the sexual assault of the eight- and nine-year-old daughters of his girlfriend.
DYFS obtained an order for custody of the younger girl upon her release from the hospital and placed her in foster care. When the girl was six months old, she was placed in the care of a maternal relative, where she remained at the time of trial. Her foster mother expressed her desire to adopt the child.
DYFS arranged for biweekly visitation for K.T.T. and W.R. with the girls. W.R. did not attend consistently, and K.T.T. missed some visitations and was frequently late. The visitation supervisors recorded several instances of K.T.T. acting inappropriately and having problems meeting the children's needs. For example, at a December 2008 visit, K.T.T. began to use profanity while on the phone, and when asked to stop, she was rude to the staff and began using profanity towards them. In February 2009, the older girl's foster mother reported that K.T.T. put earrings in the child's ears through a hole that had closed, although the child told her that it was hurting her.
In March 2008, DYFS arranged for a psychological evaluation of K.T.T. by Dr. Andrew Brown. Dr. Brown concluded that K.T.T. had a shallow repertoire of methods for establishing limits and control of children. Her cognitive disorder, poor self-esteem, drug use, rigidity, anger management, and poor insight "render her potential to engage in acts of child endangerment excessive." He concluded that K.T.T. did not demonstrate she is prepared to function as a parent and her tolerance for caring for a child appeared shallow. Dr. Brown recommended that K.T.T. be scheduled for individualized or one-to-one parenting education. She would need to obtain appropriate housing and demonstrate legal, residential, and financial stability. Her prognosis for parenting was poor.
DYFS inquired of DDD regarding services provided to K.T.T. DDD stated she had participated in a parenting program and a day program in which she had learned daily life skills. Upon further investigation, however, the day program reported that K.T.T. had attended inconsistently.
In June 2008, a DYFS caseworker met with W.R. W.R. denied that a picture of himself in the DYFS case file was him and also denied being a sex offender. He claimed that people "stole his identification." He told the worker that he "is an undercover cop," that he works for the White House and the CIA, and that he always walks behind K.T.T. because he does not want anyone to shoot her accidentally.
In July 2008, DYFS received a report that W.R. had physically assaulted K.T.T. and had been abusive to her for several months. K.T.T. had previously shown bruises to the staff at her day program, and the staff had also observed her damaged jaw and teeth. When questioned by DYFS, K.T.T. denied domestic violence. Later in July 2008, the DDD worker placed K.T.T. in a safe house because of concerns about domestic violence. K.T.T. left the safe house the following morning. A DYFS worker met with K.T.T. and asked her to sign a release for DYFS to obtain information from her day program but K.T.T. refused. When asked if she had been placed in a safe home, K.T.T. became agitated and said that her private life was no one's business. Similarly, in November 2008, she said that DYFS's questions about her swollen hand were "too personal."
In November 2008, Dr. Alexander Iofin, a psychiatrist, evaluated K.T.T. Dr. Iofin reported that K.T.T. had a history of substance abuse and had been treated with psychotropic medications. He also stated that she "resorted to denial, minimization, and rationalization in order to avoid dealing directly with [her] significant amount of problems." His provisional Axis I diagnosis included post-traumatic stress disorder, anti-social behavior, affective disorder, and impulse control disorder. His Axis II diagnosis was "mild mentally retarded functioning." He recommended individual or group therapy at a mental health clinic, but he did not recommend cognitive behavioral treatment approaches because of her mental retardation. He also noted that her "well delineated and unchangeable cognitive limitations will be the detriment that will make it impossible for her to take care of any minor child on her own, unsupervised, now or in the foreseeable future."
In December 2008, K.T.T. revealed that W.R. had assaulted her on October 8, 2008, and she obtained a restraining order.
DYFS referred her for domestic violence counseling. On that same date, she stated in court that she would test positive for marijuana if tested. DYFS also referred K.T.T. to individual parenting skills classes at Babyland Family Services. K.T.T. missed her initial appointment but attended subsequent classes.
Dr. Elayne Weitz conducted a psychological evaluation of K.T.T. in January 2009. K.T.T. acknowledged she had been diagnosed with schizophrenia, but she believed the diagnosis was inaccurate. She admitted using marijuana, but denied illegal drug use, stating that she did not consider marijuana to be a drug since it was legal in some places. K.T.T. showed Weitz "multiple scars on her face that resulted from [W.R.'s] violent behavior toward her."
Dr. Weitz found K.T.T.'s measured intelligence to be in the category of mild mental retardation. She was unable to provide "basic information such as how many weeks are in a year or why some food should be cooked before it is eaten." Testing results indicated she suffered from a "moderate degree of psycho-pathology." She also appeared to lack empathy and compassion. She had "high, unrealistic expectations of children and may be inflexible in her approach to parenting." Dr. Weitz agreed with previous evaluators that K.T.T. was "incompetent to parent and would pose a risk of abuse or neglect to a child placed in her care." She found that "[u]nder no circumstances can [K.T.T.] be considered as a viable caretaker for any child, and all contact between her and any child should be supervised." Also, K.T.T.'s cognitive limitations, which were "not treatable," "negatively affect her ability to benefit from educational programs, like parenting classes."
DYFS had also scheduled a psychological evaluation of W.R. with Dr. Brown in March 2008. W.R. appeared for the evaluation but left before it started. When the evaluation resumed in June 2008, W.R. stated he was not sure how many biological children he had. He said he received SSI benefits for "fighting . . . having a temper." He was not currently under psychiatric management, and he did not attend counseling. W.R. reported he had been in prison for "seven or eight years," and at least the last three of those years were at Greystone psychiatric hospital. His diagnosis was "schizophrenic . . . anger . . . I just snap." He reported "various episodes of paranoid ideation and . . . a marked disdain for crowds."
Dr. Brown concluded that W.R. "does not appear cognizant that he manifest[s] significant mental health issues that serve to compromise his judgment." He had not been compliant in taking prescribed psychotropic medication and he presented with symptoms suggesting paranoid schizophrenia. Without sustained psychiatric management, his behavior could be unpredictable, his frustration tolerance was shallow, and he should be considered explosive. Dr. Brown also noted that "[h]is particular form of psychosis renders him very dangerous in the presence of children (and adults) should he suddenly decompensate into a state of active psychosis and this scenario is most prevalent when he self-terminates from medical compliance." The prognosis for W.R.'s ability to function as a parent was poor.
DYFS later confirmed that W.R. had been confined at the Forensic Psychiatric Hospital at Greystone in 1999 with a diagnosis of schizoaffective disorder, depressed type. He also exhibited borderline and anti-social traits.
After the evaluation by Dr. Brown, W.R. told DYFS and the court he would seek mental health treatment on his own. The court ordered W.R. to provide proof to DYFS that he was complying with mental health treatment and medication. In September 2008, DYFS wrote to W.R. that he had not provided proof of compliance with mental health services. DYFS provided contact information for Mount Caramel Guild Behavioral Mental Health. W.R. did not pursue the recommendation.
Instead, W.R. claimed he was receiving psychiatric treatment at Integrated Case Management Services. An inquiry by DYFS disclosed that W.R. was noncompliant with services and medication at that facility. During a meeting with the DYFS caseworker about his psychiatric treatment, W.R. made delusional statements, such as he has traveled "the planet several times."
In December 2008, the court granted DYFS's motion to suspend W.R.'s visitation with the children until he provided proof of psychiatric treatment or a rebuttal expert report regarding his mental health condition. The court suspended other DYFS services for W.R. "pending further consideration and court order, once [W.R.] is complying with his psychiatric treatment and medications."
K.T.T. failed to attend a substance abuse evaluation scheduled in February 2009. In July 2009, at the request of the law guardian for the children, the court suspended K.T.T.'s visitation pending assessment of the children by a child psychologist. The law guardian had reported that K.T.T. was making inappropriate remarks during visitation and the older child did not want to see her. In August 2009, K.T.T. and W.R. were still living together in a rooming house. In November 2009, K.T.T. informed DYFS that she would be moving into a new apartment with W.R. When asked whether she was aware of W.R.'s criminal history, K.T.T. said she had "no concerns" and that W.R. "would never hurt his own daughter." Before trial, however, K.T.T. moved into an apartment by herself.
W.R. did not appear for his scheduled evaluation with Dr. Weitz in January 2009. In November 2009, W.R. stated on the record that he refused to attend evaluations, that he did not want services from DYFS, and that he was not offering himself as a "plan" for his daughter. Visitation remained suspended. In December 2009, the court entered default against W.R. because of his failure to appear and his statement that he did not wish to be considered as a caretaker for the child.
Trial on termination of parental rights was held in March 2010. W.R. did not appear at the trial. His appointed attorney was present, however, and was permitted to present a defense despite the prior entry of default. The attorney had no affirmative evidence to present on behalf of W.R.
DYFS caseworker Michelle Montgomery testified that DYFS's plan for both children was relative home adoption. She further testified that W.R. received notice of the visitation schedule, but attended only intermittently. W.R. did not comply with any services offered by DYFS. DYFS attempted to maintain contact with him through written correspondence, telephone calls, and monthly visitation, but the contacts were inconsistent. W.R. failed to complete mental health evaluations.
With respect to K.T.T., DYFS's original plan was reunification with the girls. K.T.T. also missed visitations and was often late. She did not comply with the substance abuse assessment or individual therapy. DYFS offered her vocational training at the Division of Vocational Rehabilitation, but K.T.T. never followed through. She also continued to live with W.R. despite his violence in the home.
Dr. Mark Singer testified at trial that he conducted a psychological evaluation of the older girl in September 2009 and a bonding evaluation in November 2009. Five years old at the time, the girl had an intellectual understanding of who K.T.T. was but had a negative perception and was somewhat fearful of her. She experienced anxiety when talking about K.T.T. and viewed her as a liar. Dr. Singer found that the interactions of mother and daughter lacked the empathy required for the girl to develop a healthy sense of self. He concluded that continued visitation would be anxiety-provoking for the child and not beneficial. The bonding data suggested that K.T.T. was a significant source of anxiety for the younger child, too, which was not surprising, considering that the child has never lived with K.T.T.
Dr. Singer further testified that the bonding evaluation of K.T.T. was first scheduled for October 22, 2009, but the session was rescheduled to November because K.T.T. was intoxicated on the earlier date. Although K.T.T. admitted drinking alcohol before the October appointment, she denied having an alcohol abuse problem and denied any need for treatment. Dr. Singer found her continued use of alcohol during the DYFS litigation to be indicative of a poor prognosis, and her use of alcohol on the date of the bonding evaluation to highlight "the depth of her substance abuse issue."
K.T.T. denied behaving inappropriately during visits and desired to see her children. She reported to Dr. Singer that she lived in a rooming house with W.R., and that there was domestic violence in the relationship. She also reported that W.R. had schizophrenia. While she reported being diagnosed with schizophrenia herself, K.T.T. denied being mentally ill. Such denial, while not uncommon in those with thought disorders, indicated a poor prognosis. K.T.T.'s test data indicated she was developmentally immature and had difficulty establishing and maintaining appropriate boundaries. She had little desire for meaningful social contact, lacked initiative, and focused excessively on painful experiences. She functioned in the below-average range of intelligence. Dr. Singer found her self-reported diagnosis of schizophrenia to be consistent with the test data suggesting paranoid ideation that might rise to the level of delusional content. Those factors limited her ability to engage in therapeutic services because she was not likely to trust the motive of the professionals rendering the services.
Dr. Singer concluded that K.T.T. had dependent and self-defeating personality features. He concluded further that until K.T.T.'s mental health needs and alcohol abuse were addressed, she was "likely to have difficulty functioning in general, and functioning appropriately and empathically during visits."
Dr. Singer also conducted bonding evaluations of the girls with their foster mothers. He found that both were attached to their foster mothers. The older girl was developing a reasonable relationship with her new foster mother after the death of the kinship legal guardian. The younger girl had lived with her foster mother since she was six months old and viewed her as her central parental figure. She engaged in exploratory behaviors, using her foster mother as a secure base from which to do so. She became mildly distressed when separated from her foster mother, and excited when reunited. This behavior suggested that the girl has come to view her foster mother as a consistent figure in her life. Dr. Singer concluded that the younger girl would likely experience a significant adverse reaction if separated from her foster mother. She would likely regress emotionally and behaviorally. While she was not yet in the age range (two to three years) where severing relationships results in enduring harm, the data suggested that her foster mother is her psychological parent, and the "window of opportunity" to move her without enduring harm was quickly closing.
Based on the evidence presented, the trial court determined by means of an oral opinion that DYFS had satisfied the statutory criteria for termination of the parental rights of both K.T.T. and W.R. They challenge that judgment in this appeal.
Parents have a fundamental constitutional right to enjoy a relationship with and to raise their children. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). That constitutional protection is "tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). Balance between the two competing considerations is achieved through application of the "best interests of the child" standard.
K.H.O., supra, 161 N.J. at 346-47. "In particular, 'parental fitness is the key to determining the best interests of the child in parental rights termination cases.'" J.N.H., supra, 172 N.J. at 471 (quoting In re Guardianship of B.L.A., 332 N.J. Super. 392, 402 (Ch. Div. 2000)).
Under N.J.S.A. 30:4C-15.1a, DYFS must satisfy the following four criteria to terminate parental rights:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
The statute "prescribes an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999).
With respect to W.R., the trial court found that his daughter would continue to be endangered by the parental relationship because W.R. had not addressed his mental health issues and had not considered getting services or taking medication. There was also a history of domestic violence between W.R. and K.T.T., which had not been addressed. W.R. had been unwilling to provide a safe and stable home, and it would clearly be contrary to the welfare of the child to be placed in his care. Because he had no relationship to speak of with the child, termination of his parental rights would not cause her any harm. There was a secure bond between the girl and her foster mother. It would not do more harm than good to terminate W.R.'s parental rights.
As to K.T.T., the court found that her two daughters had been removed because of her mental health and drug problems. She was living with a sex offender who committed domestic violence against her, and the living accommodations were not suited for caring for two young children. DYFS had offered mental health and substance abuse assessments, visitation, and assistance with a housing referral, but K.T.T. never adequately complied with the services or seemed able to improve her living circumstances or parenting skills. Furthermore, the reports of the professionals indicated that K.T.T. would never be capable of independently taking care of the children.
K.T.T.'s relationship with the younger girl was almost nonexistent, and the girl no longer even recognized her mother. Instead, she had developed a healthy bond with her foster mother, who was willing to adopt her. Removing her from this home would cause severe and enduring harm to the child. The older girl had been in her current placement for the past year and a half and was developing a reasonably good relationship with the relative with whom she was living, who was interested in adopting her. The relationship with K.T.T. caused the girl anxiety and stress, and it was not healthy or beneficial.
We exercise a limited scope of appellate review from the findings and conclusions of the trial court. See J.N.H., supra, 172 N.J. at 472. A trial court's findings of fact are entitled to great deference and will not be disturbed on appeal unless those findings are not fairly supported by adequate, substantial, and credible evidence. In re Adoption of a Child by P.S., 315 N.J. Super. 91, 107 (App. Div. 1998). Here, the record fully supports the trial court's findings and its conclusion that DYFS proved by clear and convincing evidence all four prongs for termination of parental rights.
Under the first prong of N.J.S.A. 30:4C-15.1a, DYFS must show that the safety, health or development of the child has been or will continue to be harmed by the parental relationship. See 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. "The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992).
We reject defendants' contentions that DYFS failed to prove their mental health condition or drug and alcohol use harmed the children. Defendants assert that the court did not identify the "actual harm" the children suffered, but a court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383. The harm need not be physical; emotional or psychological harm to children as the result of the action or inaction of their biological parents will suffice to satisfy the statutory requirement. In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986). Moreover, "[a] parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379. Discussing what constitutes "harm" under N.J.S.A. 30:4C-15.1a(1), the Supreme Court stated:
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. [K.H.O., supra, 161 N.J. at 348.]
K.T.T. cites New Jersey Division of Youth and Family Services v. I.Y.A., 400 N.J. Super. 77 (App. Div. 2008), arguing that DYFS presented no expert testimony demonstrating how her mental illness harmed the children. Our holding in I.Y.A. does not apply here. In I.Y.A., we reversed an abuse or neglect determination because DYFS never presented an expert report regarding the mother's alleged mental illness and instead relied on the testimony of the DYFS caseworker. Id. at 90-91. In this case, three experts diagnosed K.T.T. with mild mental retardation and mental illness, and all said she was incapable of caring for a child.
Dr. Weitz diagnosed K.T.T. with a moderate degree of psychopathology and found her incompetent to function as a parent. Dr. Iofin diagnosed her with anti-social behavior, affective disorder, and impulse control disorder. And Dr. Singer found her to be developmentally immature and her self-reported diagnosis of schizophrenia to be consistent with her paranoid ideation. K.T.T.'s inability to provide care for the children because of her mental illness and cognitive limitations was supported by credible expert evidence and satisfies the first prong of the statute. See N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 436 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
K.T.T. also argues that evidence was lacking that she had a drug or alcohol problem after 2003. The record shows, however, that she continued to use marijuana and to abuse alcohol. There was sufficient evidence in the record to support the trial court's finding that she had untreated drug and alcohol problems, and the consequent finding of harm to the children.
There was clearly sufficient evidence in the record to support the court's finding that W.R.'s untreated mental health issues posed a danger to his daughter. In an expert report, Dr. Brown found that W.R. had symptoms suggesting paranoid schizophrenia and he was not taking his medication. The court ordered W.R. to present evidence that he was participating in mental health treatment, but he never did. W.R. never expressed any interest in caring for the child, refused services, and did not attend the termination trial.
In sum, there was sufficient credible evidence to support the finding of harm as to each parent. See P.S., supra, 315 N.J. Super. at 107.
The second statutory element is that the parent is unwilling or unable to eliminate the harm, or is unable or unwilling to provide a safe and stable home for the child.
N.J.S.A. 30:4C-15.1a(2). The second element 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 348-49. DYFS can alternatively 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." Ibid.
While 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.]
"[T]he issue becomes whether the parent can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself." A.G., supra, 344 N.J. Super. at 434.
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, . . . with the resultant neglect and lack of nurture for the child. [K.H.O., supra, 161 N.J. at 353.]
W.R. does not make any arguments with regard to the second prong, and we need not address it further as to him because the proofs were overwhelming of his unwillingness and inability to remove the harm.
The trial judge found that K.T.T. was also unwilling or unable to provide a safe and stable home for the children because she failed to comply with DYFS services, specifically, individual therapy or substance abuse treatment. Also, she continued to behave inappropriately during visitation, despite completing a parenting class.
The trial court's findings were supported by clear and convincing evidence. Several experts stated that K.T.T. did not comply with services to treat her mental illness. All experts agreed that she had cognitive limitations and would be unable to take care of a child. Also, K.T.T. continued to live with W.R., telling the DYFS caseworker that she had no concerns about W.R. living with her and the children despite his criminal record of sexually abusing two young girls. The trial court appropriately found that K.T.T.'s moving to a new apartment without W.R. was "too little, too late."
We conclude that the court did not err in finding that DYFS had satisfied the second prong of the statutory requirements.
The third statutory element requires DYFS to undertake "reasonable efforts" to help the parent in overcoming the causes of the child's removal. It also requires that the court consider "alternatives to termination of parental rights."
N.J.S.A. 30:4C-15.1a(3). K.T.T. argues that DYFS failed to satisfy this prong because it did not consult with her or keep her informed of her children's progress, failed to provide services necessary to facilitate reunification, failed to facilitate visitation, and failed to consider reasonable alternatives to termination. W.R. argues that DYFS did not make reasonable efforts because he did not have an opportunity to participate in his child's care, was denied the parenting education recommended by the expert engaged by DYFS, and was denied supervised visitation.
The term "reasonable efforts" is defined in N.J.S.A. 30:4C-15.1c. 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 child. D.M.H., supra, 161 N.J. at 390.
Evaluation of DYFS's efforts to reunite a particular family must be done on a case-by-case basis. Ibid. In this case, DYFS provided the following services to K.T.T.: psychological evaluations, parenting classes, referrals to domestic violence counseling, drug and alcohol assessments, and visitation. Also, the DYFS caseworker communicated with her DDD worker to confirm that DDD was helping her to find alternative housing. As to W.R., DYFS arranged for visitation and scheduled a psychological evaluation and a substance abuse assessment. It also provided a referral for mental health treatment. W.R. refused all DYFS services. He did not comply with a court order to present evidence that he was obtaining mental health treatment. Also, he did not complete the mental health evaluations and did not attend visitation consistently.
There was sufficient evidence in the record of reasonable efforts to reunite defendants with the children.
Defendants argue the court did not properly consider placement alternatives. K.T.T. does not specify what alternatives to termination DYFS should have pursued. W.R. argues that the trial court did not "adequately explore" whether the maternal cousin his daughter resided with understood that she had the option of kinship legal guardianship in accordance with N.J.S.A. 3B:12A-1 to -7 instead of adoption.
Under N.J.S.A. 3B:12A-6d(3), a kinship legal guardian should be appointed if the court determines, among other factors, that "adoption of the child is neither feasible nor likely." The Supreme Court has stated that: "when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004). W.R. having failed to provide any alternative for the court's consideration, and the evidence of his unfitness having been so clearly presented, the court was not bound on its own to explore the prospect that the child's foster mother would choose kinship legal guardianship over her expressed preference to adopt the child.
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-15.1a(4). The court must evaluate "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.
Here, the overwhelming and undisputed evidence established that the children, who were never in the custody of either defendant, needed permanency and that defendants were not in a position to function as parents. The girls, now seven and three years old, have been living with their respective foster mothers for more than two years. They are attached to their foster mothers and view them as their parents. The expert evidence before the court indicated clearly that there would be more harm to the children from separation from their foster mothers than termination of the rights of their natural mother and father.
There was clearly no error in the trial court's finding that the fourth element of the statute was proven.
DYFS having proven all four elements of N.J.S.A. 30:4C-15.1a by clear and convincing evidence, the trial court correctly entered judgment terminating the parental rights of K.T.T. and W.R.