June 2, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
M.R.H. AND J.L.R., IV, DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF J.L.R., V, A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-130-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 5, 2011
Before Judges Wefing, Payne, and Hayden.
Defendants M.H. and J.L.R., IV (J.R.) each appeal from the trial court judgment terminating their parental rights to their son J.L.R., V (J.L.R. or the child) and awarding guardianship to the New Jersey Division of Youth and Family Services (the Division). We have consolidated their appeals. After reviewing the record presented on appeal, we affirm.
M.H. and J.R. are the parents of J.L.R., born March 23, 2007. Shortly before the child's birth, the parents purchased a house and began living together. M.H., who has a master's degree, worked for the Division as an investigator until she was fired following the removal of J.L.R. from her custody.
In March 2008, J.R. reported receiving threatening phone calls and emails from business associates, whom he had accused of fraud. On March 23, 2008, J.R. and M.H. filed a complaint with the local police stating that their home and car had been bugged. They also complained to the FBI and the Camden County Prosecutor's Office.
On March 27, 2008, an event occurred on the Walt Whitman Bridge that resulted in the arrest of both parents and the involuntary removal of the child by the Division. M.H. testified that J.R., after receiving a call that afternoon, told her that they had to leave the house immediately because "they're going to come for us." J.R. drove toward Philadelphia with the child and M.H. in the car.
Before they had reached the Walt Whitman Bridge, a patrolman attempted to pull over defendants' car because J.R. was speeding and had on his emergency lights. M.H. initially told J.R. to pull over, but J.R. responded that the police officer was escorting them to Philadelphia.
After driving onto the bridge, J.R. stopped and exited the car, holding the child in one arm and a baseball bat in the other. J.R. swung the bat at the passing traffic, causing slight damage to a few vehicles. M.H. reported that she flagged down a passing car and asked the driver to call the police.
Believing there was a hostage situation, the police stopped traffic in both directions. Traffic between New Jersey and Philadelphia was almost completely halted for over three hours. Close to one hundred officers from several jurisdictions were involved in the incident.
Detective Leone, a hostage negotiator with the State Police who was called to the scene, testified about the incident. According to Detective Leone, after police had secured the scene, they discovered that M.H. was not a hostage. M.H., plainly siding with J.R., yelled at him not to trust the police and warned that they would trick him. Detective Leone stated that every time J.R. began to calm down and speak rationally, M.H. interjected and yelled at him not to believe the officer. Detective Leone testified that M.H. narrated the movements of the police officers and SWAT teams to J.R. According to Detective Leone, when he began the negotiations, the child was in the front seat with M.H., where he remained for most of this time.
J.R. told the police that the car was rigged with explosives and that he would detonate them if anyone approached. He surrendered a gun to the police that turned out to be a plastic replica. He also stated that a man who was killed in Philadelphia the day before was the only person who could have helped him. He stated to the negotiator that he was being followed and that his home and car were bugged. He wanted the police to stop those things. According to the detective, M.H. concurred with those statements and demands.
After several hours of negotiations, J.R. and M.H. agreed to turn themselves in if the police guaranteed their safety and that the child would be taken to V.H., his maternal grandmother. Subsequently, the Division made an emergency removal, assumed custody of the child, and placed him with V.H., where he has remained to date.
At the end of this incident, both M.H. and J.R. were taken into police custody.*fn1 While at the police station, M.H. requested to go to a crisis mental health facility. The next day M.H. was admitted to Kennedy Memorial Hospital and diagnosed with shared psychotic disorder and acute stress disorder. The hospital records showed that she tested positive for marijuana. M.H. was discharged from the hospital on April 2, 2008.
On March 28, 2008, the day after the bridge incident, J.R. was admitted to Ann Klein Forensic Center. There, a psychiatrist determined that he did not meet the criteria for involuntary commitment, but that he needed further evaluation and stabilization. He was discharged on April 28, 2008.
On May 9, 2008, after being admitted to a hospital for threatening his neighbors with pruning shears, J.R. was diagnosed as psychotic. On May 14, 2008, he was transferred to Camden County Health Services Center for long-term treatment and given anti-psychotic medication. After two weeks the Center discharged J.R. with the recommendation that he continue to take medication and attend out-patient treatment.
Beginning in April 2008, the Division set up supervised visitation between M.H. and the child for two hours a week. J.R. was not allowed to have contact with the child due to his bail restrictions. In May 2008, the Division scheduled psychiatric evaluations for both parents. Neither M.H. nor J.R. attended their scheduled evaluations.
At the request of the Division, the Center for Family Services (the Center) assessed both J.R. and M.H. on August 26, 2008, for services. Both were found to have abused marijuana. The Center referred M.H. to a substance abuse treatment program, where she completed sixteen weeks of treatment. The Center recommended outpatient treatment for J.R. and scheduled him for intake but he failed to attend or participate in services. In December 2008, the Center terminated J.R. for non-compliance with services.
Dr. Edward Baruch, a psychiatrist, evaluated M.H. and J.R. for the Division in September 2008. Dr. Baruch concluded that J.R. suffered from mental illness and needed treatment. He also concluded that, although M.H. needed therapy, the child would be safe with her at the time. He recommended that she should not be awarded custody or unsupervised visitation while living with J.R. until he was fully treated. J.R. did not participate in the recommended treatment plan.
In November 2008, M.H. began individual therapy with Dr. Kristen Cirelli, a psychologist. The sessions lasted until June 16, 2009, when M.H. ended them. During treatment Dr. Cirelli reported several times to the Division that M.H. was making progress and would be able to parent appropriately.
From December 2008 through February 2009, M.H. had weekly visitation with the child at the Robin's Nest without incident. Beginning in March 2009, M.H. had in-home visitation with the child as part of a Robin's Nest's supervised visitation program.
On April 6, 2009, Dr. Baruch conducted a second psychiatric evaluation of M.H. He reported that her mental health had considerably deteriorated and found that reunification was not appropriate at that time. He recommended that M.H. be tested immediately for substance abuse. At the court hearing that same day, the judge ordered M.H. to participate in hair follicle drug testing. M.H. refused this hair follicle test, as well as subsequent court-ordered hair follicle tests, on religious grounds.
On June 16, 2009, M.H. had her last session with Dr. Cirelli. The psychologist reported that M.H.'s mental status had decompensated recently. According to Dr. Cirelli, M.H. told her, "As of today I am done. I do not fear this anymore. The truth will set you free. The bible is my truth and God is my only judge." M.H. also told Dr. Cirelli she intended to cash a five hundred million dollar note for a precious gem.
On July 21, 2009, the court ordered M.H. to have both a hair follicle test and a urine test, which she refused. On September 21, 2009, at a case management conference both parents refused to take urine screens. In addition, J.R. refused to permit release of his medical records.
Dr. Chester E. Sigafoos, a psychologist, evaluated J.R on October 8, 2009, for the Division. Dr. Sigafoos recommended that J.R. have no contact with the child and that J.R. be placed in a residential treatment program. He also conducted a psychological evaluation of M.H. on November 15, 2009, as well as bonding evaluations between M.H. and the child and V.H. and the child.
On November 4, 2009, during a supervised in-home visit, an incident occurred that resulted in the Robin's Nest program suspending in-home visitation. According to the caseworker supervising the visit, M.H. refused to let the child leave at the end of the visit. M.H. purported to call the Secret Service and seemed very agitated. The caseworker testified that M.H. stated that she had to call the police because Governor Corzine had tried to kill her. M.H. eventually let the caseworker take the child after the caseworker's supervisor threatened to call the police.
At the court hearing on November 5, 2009, M.H. stated that the incident on the previous day was not a hostage situation, but it could have become one. Also, she mentioned "$500 million or more transactions" and talked about Governor Corzine and contacting the Secret Service and the immigration authorities in Arizona. After listening to irrational arguments from both J.R. and M.H., the judge granted the Division's request to appoint guardians ad litem for both defendants. The judge ordered future visitation to take place at the Division local office with the police present. M.H. refused to visit her child due to her perception that the office was dirty. Thereafter, M.H. did not attend any further visits.
On January 18, 2010, at the request of M.H., Dr. James Loving, a psychologist, conducted a psychological evaluation of M.H. and bonding evaluations of M.H. and the child and of V.H. and the child. In addition, the doctor also performed a competency evaluation of M.H. and determined that she was competent to participate in the guardianship proceedings. Subsequently, the trial judge dismissed the guardians ad litem appointed for both defendants as they were deemed to be unnecessary.
Before trial, the Division and the law guardian had discussed kinship legal guardianship (KLG) as well as adoption with V.H. At trial she stated that she wanted to adopt the child and was not willing to accept KLG. V.H. testified that with KLG she feared that she might lose her rights to the child if the parents ran away with him during a visit or accused her of incompetence.
At trial three mental health professionals who had each evaluated defendants provided expert testimony. Dr. Edward Baruch testified for the Division. On September 9, 2008, he had conducted psychiatric evaluations of M.H. and J.R. Following his evaluation of J.R., Dr. Baruch diagnosed him as having a major psychiatric illness. Dr. Baruch opined that, at the time of the bridge incident, J.R. was paranoid, delusional, possibly manic, and psychotic. He found that J.R. still held the same delusions that led to the bridge incident; he believed he was an important public figure and that a conspiracy threatened the safety of his family. In Dr. Baruch's opinion, J.R. needed an intensive outpatient treatment program with psychotherapy and medication monitoring as well as marijuana counseling. Additionally, Dr. Baruch stated that J.R. should not be permitted any contact with his child at that time.
The doctor also concluded, following the September 9, 2008 evaluations, that J.R. and M.H. suffered from a shared delusional disorder. This is a rare disorder which occurs when a dominant person forms a delusional belief during a psychotic episode and imposes that belief on another. The doctor pointed out that the "acceptor" of the belief will generally resolve the delusion on his or her own after a period of separation from the dominant person. Although she was agitated and paranoid, the delusion seemed to be subsiding for M.H. and at that time it appeared that the child would be safe with her. The doctor also recommended psychotherapy and marijuana counseling for M.H.
Dr. Baruch stated that he evaluated M.H. again on April 6, 2009. This time Dr. Baruch diagnosed M.H. as having a delusional disorder and a possibility of having bipolar disorder or paranoid personality disorder. M.H.'s mental condition appeared much worse to the doctor than in her previous evaluation. He reported that she was "grandiose, and hyper-vigilant verging on paranoid and refused a urine drug screen. She has shown a decline in her mental health condition with continued enmeshment in this delusional state."
Dr. Baruch had requested M.H. to take a drug test because she appeared to be under the influence of an intoxicating substance. She showed no insight into the bridge incident and refused to take responsibility for her actions, despite having shown progress in this area during the first evaluation. The doctor recommended an immediate court-ordered hair follicle test, a psychological evaluation, and a medical exam to rule out hormonal causes of her mood swings. He concluded that because M.H. was not psychiatrically stable, her child would not be safe with her. He did not recommend reunification.
Dr. Chester Sigafoos testified that he conducted a psychological evaluation of J.R. for the Division on October 8, 2009. During the evaluation J.R. exhibited some peculiar behaviors, including bringing a desktop computer, a rain stick, a Bible and a notebook into the evaluation. He wore a prominent badge on his belt that said "Indian Police." Dr. Sigafoos diagnosed J.R. with cannabis abuse, delusional disorder, shared psychotic disorder, adjustment disorder with anxious mood, narcissistic personality disorder, paranoid personality disorder, obsessive compulsive personality disorder, and histrionic personality traits.
In the opinion of Dr. Sigafoos, J.R. showed substantial impairment of his ability to perceive people and events realistically. This impairment compromised his judgment and, he testified, is associated with psychotic disturbance. Further, he noted that J.R.'s psychotic features were chronic in nature and of relatively long duration. He opined that J.R.'s condition would be very difficult to treat and that he would need continuous treatment. Dr. Sigafoos recommended that J.R. be placed in a residential treatment program and that he have no contact with the child.
Dr. Sigafoos also testified about his evaluation of M.H. Dr. Sigafoos reached a diagnosis for M.H. which included delusional disorder, shared psychotic disorder, cannabis abuse, narcissistic personality disorder, paranoid personality disorder and obsessive compulsive disorder. The doctor stated that there was no reason to delay the child's permanency in order to wait for progress of the parents, which might not happen at all. When asked if M.H. would be able to parent, he noted that she was only in a slightly more favorable position than J.R. In his opinion, due to her psychopathological condition, M.H. posed an extreme risk of harm to the child and should not be allowed around him. M.H. could not provide nurturing, stability, protection, or guidance to the child.
The doctor also conducted two bonding evaluations, one between M.H. and the child, and the other between V.H. and the child. He concluded from his evaluation of V.H. and J.L.R. that the child had a very healthy attachment to his grandmother and would suffer serious and enduring harm if not allowed to have a continued relationship with her. He concluded that the child has an "insecure/avoidant" attachment to M.H.
Dr. James Loving testified as M.H.'s psychological expert. He evaluated M.H. on January 18, 2010. The doctor agreed with Dr. Baruch's diagnosis of shared delusional disorder and concluded that reunification with the child would not be appropriate for M.H. at this time. In his opinion M.H.'s chances of recovery would improve with medication, individual therapy, and separation from J.R. Even with these steps, however, M.H.'s prognosis was uncertain based upon the rarity of her condition, her unwillingness to take medication or attend therapy, and her denial that J.R. was delusional and a negative influence on her.
Dr. Loving conducted separate bonding evaluations of M.H. and V.H. with the child. He concluded that the child had a somewhat strong, positive attachment to M.H. and a strong, positive attachment to V.H. The doctor thought that separation of the child from M.H. would put the child at increased risk of harm but he could not say J.L.R. would experience actual harm. Dr. Loving found that the child would suffer harm if his relationship with V.H. was ended and thought adoption by her was preferable to ending the relationship. However, the doctor opined it would be in the child's best interests to maintain relationships with both M.H. and V.H. In his opinion, KLG would be the best solution for the child.
J.R. testified that he lived in a recreational vehicle but could not say where it was parked. He said the Secret Service had visited him at the Ann Klein Forensic Center but he was not at liberty to discuss the matter. He testified that he could not discuss the threats that Governor Corzine made to his family because it was the subject of a federal law suit. J.R. stated that his father had been a professional football player and also a drug kingpin who was currently incarcerated. J.R. also mentioned that he had received a Ph.D. from a university in Texas at the age of sixteen. J.R. testified that he did not enroll in the in-patient program recommended by Dr. Sigafoos because he did not need that treatment. He stated that he was receiving services from a mental health center but he had failed to provide the Division with the records.
M.H. testified that she was held on the bridge due to the activities of the police. She also explained some complicated business dealings that she claimed gave J.R. and her ownership of an emerald worth five hundred million dollars. She felt that the Division did not treat her well or provide her with meaningful services. She denied any marijuana use. She could not explain why she had tested positive for marijuana during the trial.
M.H. was particularly upset about the Division's failure to get the child vaccinated for the H1N1 virus. She explained that she had refused to give J.L.R. to the Robin's Nest caseworker on November 4, 2009, following in-home visitation because she wished to speak to the Division supervisor about the need for the vaccination. M.H. acknowledged calling the police but stated her purpose was to inform them she was keeping the child. Additionally, she denied calling the Secret Service for any reason.
M.H. stated that she had gained insight during the trial. She had decided that she would do whatever it took to get her child back, including staying away from J.R. She stated that she had not understood before that she needed to stay away from him in order to get better.
In his lengthy oral opinion, the trial judge carefully reviewed the evidence and found that the Division had proven, by clear and convincing evidence, all four prongs of the best interests of the child test required under N.J.S.A. 30:4C-15.1a for termination of parental rights. He found the testimony of Detective Leone credible and corroborated by the video of the bridge incident viewed in court. In addition, he found the testimony of the mental health experts credible. The judge did not find the testimony of either M.H. or J.R. to be credible. M.H. and J.R. have appealed from the judgment entered by the trial judge.
On appeal, both M.H. and J.R. argue that their parental rights were improperly terminated because the Division failed to prove, by clear and convincing evidence, the four prongs of the best interests of the child test specified in N.J.S.A. 30:4C-15.1a. Finding sufficient evidence in the record to support the trial judge's findings, we disagree.
We note first the legal principles that govern our consideration of these arguments. "'[P]arents have a constitutionally-protected, fundamental liberty interest in raising their biological children . . . .'" N.J. Div. of Youth and Family Servs. v. I.S., 202 N.J. 145, 166 (2010) (quoting In re Guardianship of J.C., 129 N.J. 1, 9 (1992)). In view of that fundamental interest, the law "clearly favors keeping children with their natural parents and resolving care and custody problems within the family." Id. at 165 (citation omitted).
However, parental rights are not absolute; the State also has a "parens patriae responsibility to protect the welfare of children" in situations where the child's parents are unfit or the child has been neglected or harmed. Id. at 166. Hence, as our Supreme Court has observed, "Termination of parental rights presents the legal system with an almost insoluble dilemma." N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599 (1986). The court must balance "the inviolability of the family unit," with the state's constitutional power to intervene when the physical or mental health of children is jeopardized. Ibid.
When deciding an application for termination of parental rights under N.J.S.A. 30:4C-15.1a, a trial court must apply the "best interests of the child" standard. The four statutory prongs that the Division must prove by clear and convincing evidence under this standard are:
(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.]
These factors are not discrete or separate elements, but should be considered together to provide a picture of what is in the best interests of the child. I.S., supra, 202 N.J. at 167 (citations omitted); N.J. Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).
The stakes in guardianship cases are so high, the rights to be protected are so great, and the consequences of error are so irreversible that intense scrutiny is mandated. N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004). All doubts in these cases must be resolved in favor of maintaining parental rights. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
In light of a parent's constitutional right to raise his or her own child, the burden of proof required to terminate that right must also be high. Thus, the Division must prove each of the four prongs of the best interests of the child test by clear and convincing evidence. I.S., supra, 202 N.J. at 168 (citing A.W., supra, 103 N.J. at 612).
The scope of our review of the finding of facts made by a trial judge is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1975). Because of the trial judge's ability to see and hear the witnesses, the trial judge's findings are "binding on appeal when supported by adequate, substantial and credible evidence." Ibid.
Guided by these principles, we are satisfied that there is clear and convincing evidence in the record proving all four prongs of the best interests of the child standard.*fn2 The first prong of the "best interests test" under N.J.S.A. 30:4C-15.1a requires us to determine whether "the child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 281 (2007). The harm must threaten the child's health and have a "continuing deleterious" effect on the child. Ibid. Nevertheless, courts do not need to wait until a child is irreparably harmed to terminate parental rights. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
In the present case, we agree that the first prong was satisfied when the credible evidence demonstrated that M.H. and J.R. placed the child in substantial danger during the bridge incident. The parents refused to surrender the child to the authorities for several hours during the tense stand-off with over one hundred law enforcement officers. Their inappropriate responses to law enforcement caused by their shared delusions placed the child at substantial risk of injury.
Moreover, the record shows that M.H. and J.R. have demonstrated bizarre and delusional behavior since the child's removal, which confirmed that they continued to pose a danger to the child. We rely heavily, as did the trial judge, on the opinions of all three mental health experts, who found that defendants' psychoses presented a continuing significant risk of harm to the child.
We reject defendants' argument that the Division did not prove prong one because no evidence was presented that they had ever harmed their child. That argument fails to recognize that the Division must only show that "the child's 'safety, health, or development has been or will continue to be endangered by the parental relationship.'" N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001) (quoting N.J.S.A. 30:4C-15.1(a)(1)), certif. denied, 171 N.J. 44 (2002). In A.G., we found that termination of parental rights was appropriate, even though the child at issue had not been physically harmed, where the parents both suffered from significant mental disturbances. Id. at 439. Likewise, all three experts in this case agreed that a substantial likelihood existed that either parent could have another delusional episode while with the child, thereby placing him in serious danger.
The second prong relates to parental unfitness and may be established by demonstrating that (1) "the parent is 'unable or unwilling 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 (citation omitted). This prong requires the court to decide "whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care." I.S., supra, 202 N.J. at 167 (citing A.W., supra, 103 N.J. at 607). Thus, the judge must determine whether the parent has cured the initial harm which led to removal and whether the parent is able to maintain a harm-free relationship with the child. K.H.O., supra, 161 N.J. at 348.
The experts here agreed that each parent continued to pose a danger to the child. During the two years from the removal to the trial, neither parent made a significant sustained attempt to address the mental health issues that led to the removal. We recognize here, as did the trial judge, that the very nature of their delusion prevents defendants from engaging in the activities they each need to get well.
The issue here is not one of moral culpability, but rather of the inability of the parents due to mental illness to provide for the child's health and development. As this court stated in In re Guardianship of R., G., and F., 155 N.J. Super. 186, 194-95 (App. Div. 1977), [t]he fact that the parents may be morally blameless in this unfortunate situation is not conclusive on the issue of permanent custody. Undoubtedly, their inadequacy as parents stems from their mental illness . . . . N.J.S.A. 30:4C-15(c) speaks to the "best interests of any child," not simply the presence or absence of culpable fault on the parents' part. [Id. at 195.]
Similarly, here defendants' mental illness prevents them from being able to cease the harm to the child.
We find M.H.'s argument that she participated fully in the services unsupported by the record. We also are not persuaded by her contention at the end of the trial that she was willing to fully separate from J.R. and participate in services. The judge did not find this statement credible in light of her actions and inactions over the previous two years. We defer to the judge's credibility determination, which is fully supported by the record. Cesare v. Cesare, 154 N.J. 394, 414 (1998).
The third prong is whether the Division has made reasonable efforts to assist the parents in eliminating the harm and whether alternatives to termination have been considered. N.J.S.A. 30:4C-15.1a(3). "Reasonable efforts 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." N.J. Div. Youth and Family Servs. v. A.R., 405 N.J. Super. 418, 441 (App. Div. 2009) (internal quotations and citations omitted). Whether the efforts were reasonable is based upon a consideration of the efforts made, not on whether those efforts were successful. D.M.H., supra, 161 N.J. at 393.
With respect to J.R., the record is clear that from the time of J.L.R.'s removal he refused to participate in any services recommended by the Division and made very little effort toward reunification. On the other hand, after the removal of the child, M.H. participated in counseling, substance abuse treatment, psychological and psychiatric evaluations, parenting skills classes and visitation for a period of time. However, mere participation is insufficient, especially when, as here, the underlying problem of delusional thinking interferes with the ability to benefit from the services. We reject M.H.'s claim that the Division did not make reasonable efforts to provide appropriate services. The record demonstrates substantial efforts made by the Division to effectuate reunification, which M.H. in the end chose not to accept.
The third prong also requires the court to consider alternatives to termination. Both defendants argue that the judge did not adequately explore KLG as the better alternative in this case. We are satisfied that the record reflects that the judge adequately explored alternatives to termination. We also must reject defendants' arguments that in this instance KLG should be the preferred alternative to termination. Only when adoption is "neither likely nor feasible" is the alternative permanent living arrangement appropriate. N.J.S.A. 3B:12A-1(b). Thus, "'when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights . . . .'" I.S., supra, 202 N.J. at 211 (quoting N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 513 (2004)). In this case, as V.H. is willing to adopt J.L.R., adoption is feasible, and KLG is not appropriate.
J.R. also argues that the mere fact that the child was with a relative meant that placement provided a suitable alternative to termination. On the contrary, where a relative is willing to provide care, "termination is both unnecessary and unwise unless the relative wishes to adopt the child . . . ." A.W., supra, 103 N.J. at 609 (emphasis added). The record is clear that V.H. wishes to adopt the child, therefore the plan is appropriate.
The fourth prong requires a finding that termination of parental rights will not do more harm to the child than good. N.J.S.A. 30:4C-15.1a(4). The question under this prong is "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. Generally, this determination requires an expert to evaluate the comparative strengths of the relationship between the child and the biological parent, and that of the child and the foster parent. Ibid. (citing J.C., supra, 129 N.J. at 25).
In this case both parents suffer from similar mental illnesses that caused the experts to agree that they each posed a danger to the child. Moreover, while treatment is recommended, the nature of the illness often causes the person to deny the need for treatment. None of the experts was able to predict when, and even if, either parent would become well enough to cease being a danger to the child.
Additionally, both bonding evaluations showed that while the child had a bond with the mother, the bond with V.H. was stronger and much more stable. Both psychologists agreed that the child would suffer harm if the relationship between him and V.H. was terminated. According to Dr. Sigafoos, the harm would be severe and enduring. He saw little harm if the relationship with M.H. was terminated. Dr. Loving said only that termination of the relationship with M.H. would increase the risk of harm to the child.
In contrast, no bonding evaluation was conducted between J.R. and the child. J.R. argues that the judge could not make an informed decision under this prong without a comparative bonding evaluation. The trial judge had determined no bonding evaluation was needed as J.R. had not been a significant figure in his son's life since he was one year old, over two years before the trial.
We have held that generally the Division must provide comparative bonding evaluations between the child and the natural parent if it intends to rely upon bonding evaluations between the resource family and the child. A.R., supra, 405 N.J. Super. at 444. We observed that we could perceive of very few cases where a comparative bonding evaluation would not be needed for a judge to make an informed decision. Id. at 440.
Here, the child has not seen J.R. since he was one year old. Even more significant is the fact that both experts who evaluated J.R. found him to be psychotic and not in touch with reality and recommended no contact with the child. Indeed, J.R.'s testimony at trial showed that he was still suffering from the same delusions that Dr. Baruch and Dr. Sigafoos had noted. We cannot comprehend how subjecting the child to a bonding evaluation under these unusual circumstances would provide any useful information. Moreover, according to the experts, it might be harmful to the child. We agree with the trial judge that this is one of the rare instances where a bonding evaluation is not necessary.
Based upon the inability of the parents to care for the child and the strong bond with the grandmother, the trial judge held that termination of parental rights would not do more harm than good. A child cannot afford to wait until some time in the distant future when a parent may be able to provide a safe and secure environment. This is particularly true here where no expert could predict if and when either parent would become fit to parent. The trial judge's determination that termination will not do more harm than good is amply supported by the record.