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New Jersey Division of Youth and Family Services v. B.E

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 14, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
B.E., DEFENDANT-APPELLANT, AND M.M., DEFENDANT. IN THE MATTER OF THE GUARDIANSHIP OF F.K.E., AND A.S.K.E., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0210-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 7, 2011

Before Judges Graves, Messano and Waugh.

Defendant B.E. appeals the termination of his parental rights to two of his daughters, F.K.E. and A.S.K.E. He raises the following points for our consideration:

POINT I

THE STATE FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE THE FATHER'S PARENTAL RIGHTS IN ORDER TO PROTECT THE CHILDREN'S BEST INTERESTS.

POINT II

THE TRIAL COURT ERRED IN CONCLUDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE TERMINATION OF THE FATHER'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

POINT III

DYFS FAILED TO PROVIDE REASONABLE EFFORTS TO REUNIFY THE FAMILY BY NOT OFFERING FAMILY THERAPY OR SIGNIFICANT HOUSING ASSISTANCE.

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

I.

The Division of Youth and Family Services (DYFS or the Division) filed a guardianship complaint and order to show cause (OTSC) on March 20, 2008. At the time, DYFS sought care, custody and supervision of four children: F.K.E., born October 12, 1996 (Franny); A.A.K.E., born May 2, 1998 (Alice); S.M.K.E., born April 13, 2000 (Sophia); and A.S.K.E., born August 14, 2003 (Amy).*fn1 Defendant, M.M. (Mary), is the mother of all four children; defendant is the biological father of Franny and Amy; and the father of Alice and Sophia was never located and did not participate at trial. Mary was also the mother of two other older children who were already in the care and custody of their aunt and were not subjects of the guardianship complaint. Mary has not appealed from the order terminating her parental rights to the four children.

DYFS's contact with the family began on March 4, 1993, after one of the older children sustained a third-degree burn on his right thigh while sleeping on a mattress placed near a radiator. The Division investigated and determined the charge of neglect was unsubstantiated. On October 28, 1997, DYFS received another referral after one-year-old Franny burned her hand on exposed pipes in the family's home. Again, the charge of neglect was unsubstantiated.

On May 4, 1998, DYFS was notified by the hospital that Mary had given birth to Alice in her home two days earlier, and that both mother and child tested positive for cocaine. Mary's claims that she had attended prenatal care appointments at University Hospital could not be confirmed. DYFS substantiated neglect against Mary and obtained custody of Alice and supervision of Franny and her two older siblings.

DYFS offered Mary and defendant a variety of services at that time, including an outpatient intensive drug treatment program for Mary and assistance in securing a Section 8 housing voucher. Mary successfully completed her drug treatment program, the family was reunited on October 26, 1998, and DYFS continued to monitor the family in the years that followed.

DYFS learned that Sophia was born on April 13, 2000, had low birth weight and that she and Mary had tested positive for cocaine. DYFS again substantiated neglect against Mary and obtained custody of all the children in May 2000. It is unclear from the record what specific services, if any, were provided at this time, but the family was reunited again on January 26, 2001.

During the ensuing five years, DYFS received seven additional reports of neglect, many drug-related, but was unable to substantiate the allegations. The Division continued to offer defendant and Mary a variety of services, including referrals for drug assessments, furniture for the children, and funds to pay for clothing, food and transportation. Defendant and Mary sometimes failed to attend their scheduled assessments.

On April 15, 2006, DYFS received another referral alleging that Mary had been arrested and that the children had been left home alone for several days. Police went to the home and found five of the children, then ages thirteen, nine, seven, six and two, alone. They claimed that defendant had gone to work and that their oldest sister, then fifteen, had left to watch a movie. When interviewed later, defendant acknowledged going to work and leaving his children alone. Defendant also told the caseworker, Madeline Boughton, that Mary frequently sold the family's food and food stamps to support her drug habit, and that she had been recently incarcerated.

Defendant also said that he would rather see his children in foster-care than living with their mother, and claimed that he only maintained contact with Mary because she received housing assistance. DYFS substantiated an allegation of neglect against defendant for his failure to supervise the children, but did not seek removal.

On May 1, 2006, defendant signed a case plan agreeing to provide a "[s]afe and stable environment" for the children. DYFS also provided defendant with a variety of services, including an in-home parent aide, referrals for food and child care assistance, and drug assessments. DYFS gave defendant $900 to purchase food and clothing for the children, and directed him to save itemized receipts for the expenditures. However, when later asked to provide documentation, defendant was only able to produce a few fast-food receipts totaling less than $100.

On July 12, 2006, Mary pled guilty to two counts of possession of a controlled dangerous substance with intent to distribute, and was sentenced to three years probation.

In October 2006, defendant told Boughton that Mary was "'back on those drugs,'" but that she would probably not cooperate with drug treatment. Defendant signed another case plan on November 16, agreeing to cooperate with an in-home parent aide, submit to a psychological evaluation and not leave the children alone with Mary. The plan provided that DYFS would seek removal of the children if defendant failed to comply with these conditions. DYFS also referred both Mary and defendant for additional assessments; however, defendant's attendance was sporadic.

On December 7, 2006, the New Jersey Department of Community Affairs conducted a hearing to review allegations that Mary had failed to provide accurate information regarding the family's income, specifically with regard to defendant's earnings, and had engaged in drug-related criminal activity. Boughton accompanied defendants to the hearing that resulted in termination of their Section 8 assistance. Eviction was scheduled for January 31, 2007, and Boughton was advised that the family was ineligible for further assistance for a five-year period.

On January 24, 2007, Boughton visited the family and found all six children home alone. Defendant claimed that Mary was supervising the children while he ran errands. The following day, Boughton again found the children alone. When Boughton returned the next day to drive defendant to a random urine screening, she once again found the children alone without any adult supervision.

On January 30, 2007, DYFS filed an OTSC and verified complaint seeking custody of the six children alleging that defendant and Mary had failed to comply with DYFS services and that the family's eviction was imminent. The children were removed on an emergent basis with the two oldest children being placed with their aunt, and the four younger children being placed in two foster homes.

On February 22, 2007, the return date of the order to show cause, the court ordered Mary and defendant to submit to drug screens immediately following the hearing. Defendant tested positive for cocaine and heroin, and Mary tested positive for cocaine. Defendant told the drug screener that he was taking medication prescribed by his dentist, but could not produce proof of the alleged prescription. On April 4, 2007, the court conducted a fact-finding hearing and concluded that defendant and Mary had neglected their children by failing to provide adequate shelter, by engaging in criminal activity, by continuing to use illicit drugs and by leaving their children home alone.

Once removed, the children underwent comprehensive evaluations that included mental health evaluations. According to one report, Franny, then ten years old, told her physician that she saw her mother use crack and cocaine, and that "her father would get angry at her mother because her mother would stay out late using drugs." Franny recounted that she was "'scared to death'" during a fight between defendant and Mary, who was intoxicated at the time.

DYFS referred defendant and Mary for a myriad of services, which included psychological and substance abuse assessments, individual counseling, substance abuse treatment and parenting skills classes. DYFS provided supervised visitation and funds for transportation. However, defendant's and Mary's cooperation and attendance were irregular.

For example, Mary failed to report to the first three intake appointments for her outpatient substance abuse counseling and thereafter claimed the program interfered with her recently obtained employment. However, Mary never provided verification of employment and her treatment was terminated on November 7, 2007, because of "non-compliance with the rules and regulations of [the] program." Because of her inability to document that she was substance-free, Mary could not attend a separate parenting class.

Defendant missed several appointments before he finally attended a substance abuse assessment on July 27, 2007. The counselor referred defendant to an extended drug assessment program, but defendant did not comply. Although defendant began taking parenting skills classes on August 22, 2007, he did not actually complete the program until 2009.

After missing several appointments, on September 10, 2007, defendant met with Dr. Albert R. Griffith for a psychological evaluation. Defendant told Griffith that he tried marijuana and drinking as a teen, but did not use these substances as an adult because they were "inconsistent with his religious beliefs." However, defendant admitted using cocaine the day his children were removed in February.

Defendant claimed that he and Mary married in 1991 but their relationship had been on-and-off since.*fn2 Griffith administered various tests and concluded that defendant had the intellectual capacity to parent, but was not ready to assume primary custody of the children because he lacked responsibility and insight:

[Defendant] wishes to present as a highly responsible, conscientious, long-suffering, religious individual. His many job changes, separations from his substance abusing partner and general adult lack of responsibility belie that impression.

Instead, it is more likely that he has been one who has more consistently dealt with his own transient needs . . . than any responsibility that he felt for others.

Thus as a parent it is not likely that he was a steady presence.

In December 2007, DYFS changed its long-term plan from reunification to the termination of parental rights followed by adoption for Franny, Alice, Sophia and Amy, and kinship legal guardianship for the two oldest children. The court held a permanency hearing on January 24, 2008, and approved DYFS's plan.*fn3 As noted above, the guardianship complaint was filed in March 2008. Neither defendant nor Mary appeared in court on the return date of April 16, 2008. On July 17, 2008, the new DYFS caseworker, Damian Johnson, referred defendant for another drug evaluation; he failed to attend.

On August 12, 2008, Dr. Mark Singer completed a psychological evaluation of defendant. Defendant told Singer that recently he and Mary lived together with his mother for a year and a half, but that he was currently living alone in a rooming house. Defendant was aware of Mary's substance abuse issues but claimed that she was drug-free and believed the children should return home. Defendant denied any past or present use of alcohol or drugs.

Singer concluded that defendant tended to minimize his personal faults, had inflated self-esteem and engaged in public displays of compliance. Such characteristics rendered him "somewhat resistant towards engaging in therapy," and in Singer's view, the fact that defendant did not take proactive action [despite] having been aware of [Mary's] drug use [was] of concern as related to his ability to possibly protect his children from potential harm, should [Mary] relapse in the future.

In October or November 2008, defendant told Johnson that Mary was using drugs again.

In addition to the psychological assessments, Singer conducted bonding evaluations of defendant, Mary and their children on November 14 and 18, 2008. Singer noted that the children clearly viewed defendants as parental figures and would likely experience "significant and enduring harm" if separated from them. However, defendants lacked the necessary physical and emotional resources to care for the children and could not be entrusted with their care until they could maintain employment and appropriate housing, and unless Mary sustained a drug-free lifestyle. Singer concluded that it was premature to terminate defendants' parental rights and recommended giving defendants additional time to make progress.

On January 26, 2009, Johnson referred defendant for another substance abuse evaluation. However, defendant missed his initial intake appointment eight times and did not actually meet with the evaluator until June 11, 2009. Defendant reported that he had worked as a chemical operator for three years and had a total of more than twenty-five years of work experience. At the time of the evaluation, however, defendant was unemployed, but claimed that he was "in the middle of arbitration to get his job back."

Defendant admitted having used marijuana and cocaine but not in the prior thirty days. The evaluator concluded that defendant did not appear to be drug-dependent but recommended an extended assessment consisting of additional interviews and urine screens. Defendant did not cooperate with the extended assessment, and as a result, the extent of defendant's drug use or dependency could not be conclusively determined. In July 2009, defendant began attending weekly individual therapy sessions with Bill Powell, a licensed, clinical social worker who would later testify favorably on defendant's behalf at trial.

On July 28, 2009, Dr. John Quintana, a psychologist, completed a psychological assessment of defendant at the behest of the law guardian. Defendant acknowledged Mary's drug use but remained optimistic. Regarding his own drug use, defendant admitted having used marijuana and cocaine but denied any current use. Defendant admitted disciplining the children on occasion by "'giving them the belt on their behind.'"

Defendant also told Quintana that he was unemployed, and that he had been terminated by his prior employer because he had taken time off to attend a funeral and his supervisor declared him "'AWOL.'" Defendant claimed that his case was going to "arbitration" and that he planned to use any back pay that he recovered to obtain stable housing for his family. Quintana was troubled by defendant's representation that he was fired because he went "'AWOL'" since, in April and May 2009, defendant apparently told another psychologist that he had been terminated because of a false positive drug test.*fn4 Quintana "suspect[ed] that [defendant] was not fully candid" and felt that defendant exhibited "antisocial personality traits." Quintana concluded:

[Defendant] is underestimating the severity of [Mary's] substance abuse problem and to date he has been unable to place his children's needs first and he remains loyal to her. He also has been unable to secure stable housing for his family and he remains hopeful that he will succeed in his appeal of his termination . . . and [claims] he then will have sufficient money for housing. This writer does not know what is keeping him from obtaining another good-paying job in the meantime.

At this time this writer cannot recommend that [defendant] receive custody of his children because he is presently unlikely to make his children a priority over his wife and due [to] his inability to provide for their adequate care . . . . He needs to obtain stable housing and employment. He also should continue receiving drug screens and to [sic] continue attending counseling in order to address maladaptive character traits.

Quintana also conducted a bonding evaluation of defendant and Mary with their children. According to Quintana, the children had an emotional connection to defendants and related well to them, but "after almost three years in foster care the children appear[ed] less emotionally dependent on their parents." Quintana recommended that DYFS proceed with terminating defendants' parental rights because they were still unprepared to take custody of their children, and it was not in the children's best interest to "remain in limbo."

Singer met with defendant on September 29, 2009, for a follow-up psychological evaluation, and, on December 10, Singer conducted a bonding evaluation. Singer characterized the situation as being "highly complex" because of defendant's shifting views on parenting and his relationship with Mary.

Singer highlighted numerous inconsistencies in information defendant provided throughout their meetings with regard to his own drug use and his relationship with Mary. At one point, defendant claimed that he had not seen Mary for more than one month, that she had relapsed, and that he intended to divorce her and raise his children alone with the help of his oldest daughter. On a later date, defendant told Singer that he and Mary had reunited and planned to raise the children together. Defendant told Singer that Mary was sober, though she continued to associate with people who used drugs. Defendant, however, did not wish to "judg[e]" his wife. Moreover, in contrast to what he told Quintana, defendant admitted to Singer that he was terminated from his prior employment because of a false positive drug test in January 2009, which he attributed to having taken Tylenol with codeine. Defendant was collecting unemployment and awaiting arbitration.

Defendant's test data suggested that he was secretive, and Singer found that defendant's secretiveness had increased despite therapy, a "clinically surprising" finding since therapy would normally help an individual become more open and honest. Defendant's parenting plans were "in flux" and dependent on his relationship with Mary, and Singer asserted that the resulting instability was detrimental to the children.

With regard to the children, Singer opined that while they intellectually understood that defendants were their parents, the underlying bonds were not healthy. For instance, Singer noted that although Franny gravitated more towards her father than her mother, she was less verbal than the other children and tended to engage in more solitary behavior. He concluded that this "distancing" behavior was likely an attempt to protect herself from feelings of vulnerability. Singer indicated that this coping mechanism would not serve Franny well in the future. Amy often behaved in an aggressive manner, which Singer attributed to defendants' failure to provide structure. Singer concluded that the children would likely experience a "negative reaction" if their relationships with defendants were severed, but that the children had been "negatively impacted by the parental behavior and the inconsistency that the[y] . . . ha[d] been exposed to."

Singer also completed separate bonding evaluations of Franny and Amy with their respective foster parents. At the time, Amy and Sophia, respectively six and nine years old, had been living together with their foster mother, Ms. C., for approximately five months. Ms. C. told Singer that she was willing to adopt both and would permit the children to maintain contact with their family members. Singer found that the children had not yet come to see Ms. C. as a parental figure. Singer concluded that neither Sophia nor Amy would experience a significant and enduring harm if removed from Ms. C.'s care. However, Singer added that the finding was not surprising given the short time the children had lived with Ms. C., and that a healthy attachment could evolve if their relationship were permitted to continue.

Franny was twelve at the time and had been living with her foster mother, Ms. B, for approximately two years. Although she expressed a desire to be reunited with her family, Franny indicated that she wished to stay with Ms. B if reunification were not possible. Ms. B indicated that she would adopt Franny if the family was not reunified, and that she would permit continued contact with her parents "once in awhile."

Singer noted that Franny viewed her foster mother to be a psychological parent and derived a sense of security and stability from her. If the relationship were severed, Singer believed Franny would experience a negative reaction and manifest regressive behavior.

Quintana also conducted a bonding evaluation between Franny and Ms. B and reached similar conclusions. Franny told Quintana that her mother was addicted to drugs and although she "'used to be with [her mother] to protect her,'" she could no longer "'pull [herself] down anymore for her.'" Franny expressed fondness for defendant and viewed him as "an older brother." Quintana concluded:

[Franny] has been loyal to her family . . . and . . . has taken the role of "protector" for her mother and caretaker of her younger siblings. [Franny] would be willing to return with her parents but she would remain insecure with them due to the risk that she might once again "be taken from my parents." She apparently is uncertain about her mother's ability to overcome her addiction to "drugs."

On the other hand, [Franny] feels secure and comfortable with [Ms. B] and appears to be thriving in her home. . . .

Her father apparently has been delaying moving forward due to his loyalty to his wife and/or inability to face the stark reality of the seriousness of his wife's addiction to drugs.

In this writer's opinion, [Franny] deserves the right to move on with her life and to secure a healthy and permanent home life. This writer believes that it is in [her best interests] to proceed with the process of terminating . . . parental rights.

On December 17, 2009, the court conducted another permanency hearing and approved the Division's plan for termination followed by adoption. During the hearing, defendant and Mary represented that they were residing together and wished to raise the children together.

Trial commenced on January 25, 2010, however, neither defendant nor Mary attended the first day. Following the continued trial on February 16, 2010, defendant submitted to a urine test which was positive for morphine and methamphetamine.

Boughton and Johnson identified various documents admitted into evidence and testified consistently with what we have detailed above. Johnson described the services that DYFS provided to the family and stated that defendant and Mary persistently failed to comply with recommendations. In December 2009, Johnson sent defendant a letter which listed various housing resources. However, defendant told Johnson that as of trial, he and Mary were living with her brother and the home was too small to accommodate the children. Although defendant consistently expressed a desire to reunify his family, Johnson testified that defendant repeatedly went "back and forth" about his relationship with Mary. Defendant was unemployed at the time of trial and he was awaiting arbitration. Johnson noted that Franny's foster mother had submitted a letter conveying her commitment to adoption if parental rights were terminated. Amy's caretaker indicated that she would consider adopting her, Alice and Sophia, but had not yet submitted a commitment letter.

Nancy Morris, a licensed social worker, testified as an expert in the field. Morris was employed by Kid Connection, an agency that provided services for DYFS-referred families, and began providing therapy respectively to Amy and Franny in September 2008 and March 2009. Amy had made significant progress, and was doing well in school, both academically and behaviorally. She enjoyed visits with her family and wanted to be reunited with her parents. Morris noted that Amy had a positive relationship with her sisters and her foster mother.

Franny initially exhibited anger management issues but had made positive progress in her foster home. Like Amy, Franny expressed a desire to return to her parents, but if reunification were not possible, Franny wished to stay with her foster mother with whom she had a good relationship. Morris believed that the children would be upset in the event of a termination, but felt that they were resilient and would do well based on their progress.

Deanna Ebron was the case supervisor. Ebron stated that DYFS would employ "select home adoption" if the children's current foster homes were unwilling to adopt them. That would entail pairing the children with potential adoptive families based on various factors such as the history and behavior of the children. The children were not considered "hard-to-place," and as of trial, DYFS had already identified four potential adoptive homes.

Singer was called as an expert witness in psychology. He testified regarding the various evaluations that he had conducted and reaffirmed his prior findings that defendants did not have, and would not likely acquire, the resources to properly parent the children in the foreseeable future.

Defendant called Powell as an expert witness in marriage and family therapy. Powell concluded that defendant was responsible and committed to his family and marriage. Powell also believed that defendant could effectively parent because he had "always . . . been there for his family, for his children," because there was "never . . . any neglect" on defendant's part, and because defendant nurtured his children and sought to take care of their needs. Powell also testified that DYFS should have offered additional services, such as marriage counseling and family therapy.

However, Powell conceded that defendant did not disclose many "significant" facts, such as the number of times DYFS substantiated neglect and removed the children, defendant's own use of illicit substances, Mary's drug-related criminal offenses, and defendant's failure to comply with recommended drug assessments. Powell acknowledged that defendant never mentioned such matters to him, and that he had assumed that defendant was being truthful.

The law guardian called Quintana as an expert witness in psychology. Quintana opined that defendant could not provide a safe and stable home for his children because he did not have permanent housing, and because he had a "blind loyalty" to Mary that placed her above the children's needs. Defendant underestimated and enabled his wife's drug abuse. At the same time, defendant was dependent on Mary and appeared to be waiting for her to overcome her addiction instead of actively addressing his problems.

Quintana testified that Franny did not see defendants as her psychological parents, and more likely viewed "herself as their parents." He felt that she would continue to thrive even if she were permanently separated from her parents based on the "dramatic" changes she had undergone while in the care of her foster parent.

Quintana believed that Amy was the most troubled of the children. However, it was "difficult to specifically say that she ha[d] a strong bond to [defendants]," because she appeared more concerned with interacting and fighting with her siblings than in being comforted and nurtured by her parents. In Quintana's view, Amy's maladaptive behaviors demonstrated that she had already been harmed by her parents, and although she would experience an initial "shock[]" she would "bounce back . . . because [she was] already living without [her] parents" for several years. Both children needed permanency and keeping them in a "limbo situation" would be detrimental to their development.

On March 2, 2010, the judge interviewed Franny, Alice and Sophia in camera. He then summarized his conversation with the children on the record. On March 22, the judge issued a written decision concluding that DYFS had proven the four-prong statutory standard contained in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. On March 24, 2010, he entered an order terminating defendant's parental rights to Franny and Amy. This appeal followed.

DYFS supplied a post-termination order entered on November 30, 2010, in which the judge, citing a "Court Report," noted that Alice, Sophia and Amy were doing well and had been placed in a foster home that would adopt them. Franny, however, "alleged verbal and physical abuse from" her foster mother, and requested to be moved to another foster home. The law guardian indicated that Franny wanted to be reunited with defendant. Franny began evidencing behavior issues at school after she was elected "student president." A permanency hearing was scheduled for March 10, 2011.

On May 9, 2011, the Division advised us and defendant that Franny was removed from her adoptive home on April 20 following a request by her foster mother. DYFS intended to pursue "select-home adoption" as a result. Regarding Amy, the Division advised that she still resided in the same foster home, and that her foster mother was "committed to adopting her."

Defendant then moved to supplement the record to include the Division's letter and to remand the matter to the trial court to reconsider termination. DYFS did not oppose the motion to supplement the record, but, along with the Law Guardian, the Division opposed the motion for remand. We grant the motion to supplement the record, but, for reasons expressed below, we deny defendant's motion for remand.

II.

We state some general principles that inform our review. "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

When the State seeks to terminate parental rights, it must prove by clear and convincing evidence each of the following four standards:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) [D.Y.F.S.] has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]

These four prongs require a fact-sensitive analysis, and are "neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (2007) (quotations omitted).

The first point in defendant's brief essentially re-states the appropriate standard of review and the four-prong statutory test without making any substantive arguments regarding the evidence at trial. Defendant also generally argues that he was entitled to have the evidence assessed as to him alone and without regard to Mary. See, e.g., id. at 288 ("Parental rights are individual in nature and due process requires that fitness be evaluated on an individual basis."). However, "[a] parent is unfit if he or she is unable or unwilling to prevent harm to the child irrespective of the source of the harm." Ibid.

In this case, the evidence demonstrated that defendant was aware of Mary's drug dependency yet repeatedly failed to protect his children from the ill-effects of her addiction and was unable to place the needs of his children first and foremost. Moreover, putting defendant's relationship with Mary aside, the evidence of his repeated failure to cooperate with substance abuse evaluations, his use of drugs, and his lack of employment and housing clearly and convincingly demonstrated that he was unable to effectively parent his children and would not be able to do so in the foreseeable future.

We turn to defendant's specific challenges to the proof regarding prongs three and four.

(a)

Relying principally upon Powell's testimony, defendant contends that DYFS failed to prove the third prong of the statutory best interests test because the Division failed to provide marital counseling and housing assistance. The judge concluded, however, that DYFS had satisfied prong three because defendants "were not only offered extensive services, but multiple chances to take advantage of them."

The third prong requires DYFS to make "reasonable efforts" to assist the parents in correcting or eliminating the circumstances that caused the harm and to consider alternatives to termination. N.J.S.A. 30:4C-15.1(a)(3). "Reasonable efforts" mean: 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).]

However, the reasonableness of the services offered depends on the circumstances of a given case, not the ultimate success of those efforts. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 441 (App. Div. 2009); see also In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999) (noting the reasonableness of efforts for reunification "is not measured by their success").

Here it is undisputed that DYFS considered alternatives to termination. Initially, the case goal was reunification; however, the Division ultimately abandoned that plan and sought termination after defendant and Mary were unable to provide a safe and stable home for the children. Efforts to place Franny and Amy with relatives were explored, but were ultimately unsuccessful because those relatives did not qualify.

DYFS provided the family with a multitude of services over an extended period. The record shows that defendant failed to take advantage of the opportunities that he was given by repeatedly missing appointments, declining to comply with recommended programs, and continuing to use drugs even during the trial.

Powell's claim that DYFS should have done more to assist defendant with housing options ignores the fact that the Division helped the family obtain Section 8 housing as part of its early interventions, and that defendants' own misconduct caused their eviction and disqualification from the program. There was no evidence that defendant initiated any action thereafter to secure safe and stable housing for himself and his children.

Powell's opinion that additional marital counseling and family therapy would have made a difference in working toward reunification ignores the evidence that defendant failed to access the services DYFS did provide and frequently missed or delayed evaluations until the last possible moment, or never attended at all. A fair reading of the record reveals that DYFS closely monitored the family and provided a full array of services directed toward reunification over an extended period. We therefore reject the argument that DYFS failed to prove prong three by clear and convincing evidence.

(b)

Defendant next contends the judge erred in finding that DYFS had proven prong four because the Division failed to present a "concrete plan" for the adoption of Franny and Amy, and the children were clearly attached to him and repeatedly expressed desires to be reunified with him.

In concluding that terminating defendant's parental rights would not do more harm than good, the judge noted that defendants had not remedied the problems that had necessitated removal, and "continue[d] to create circumstances inappropriate" for reunification. He also found that the "bonding evaluations reveal that the children would experience a loss from their parent's rights being terminated, [but] such loss would be mitigated in the long term." The judge concluded:

Today, approximately three years after the removal of the children, and despite reasonable efforts, there is no reasonably foreseeable hope of reunification. Delaying termination beyond the already extensive period can only cause more harm to the children and their prospects of finding an adoptive home. These children are in need of a permanent and stable placement.

The fourth prong has been characterized "as a fail-safe against termination even where the remaining standards have been met," and examines the effect of termination upon the child. G.L., supra, 191 N.J. at 609. As to that part of the best interests test, the judge is required to determine "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. In considering the adequacy of the proofs, a court "cannot require a showing that no harm will befall the child as a result of the severing of biological ties" because there is always some inherent harm to a child when a biological parent's rights are terminated. K.H.O., supra, 161 N.J. at 355.

We have recognized the importance of providing permanence and ensuring that the child does not "languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209 (App. Div.), certif. denied, 192 N.J. 293 (2007). At the same time, we have noted that "[a] court should hesitate to terminate parental rights in the absence of a permanent plan that will satisfy the child's needs." N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996).

The judge acknowledged that the children shared a bond with defendant and repeatedly expressed a desire to be reunited with him. However, the judge relied upon the undisputed expert testimony that the children would suffer a loss if parental ties were terminated, but that the loss would be mitigated through the relationships already formed with their foster parents. Singer and Quintana also agreed that the existing parental bonds were not healthy, that defendants were unlikely to become fit in the foreseeable future and that holding the children in limbo was detrimental to the children's development.

Although at trial only Franny's foster parent had indicated a clear intention to adopt her, Sebron testified that "select home adoption" was an alternative plan, that the girls would be able to be placed rather easily, and that the Division already had four alternative placements that could lead to adoption. In short, there was substantial evidence that supported the trial judge's findings and conclusions regarding prong four of the statutory best interests test.

Since trial, Franny has been removed from her foster home and placed in another. Defendant contends that this "material change of circumstances" requires us to remand the matter to the trial court for reconsideration of the termination order.

DYFS has indicated that it is now moving toward "select home adoption," which, as we noted above, was an option fully contemplated at the time of trial. Indeed, in his written decision, the judge specifically noted the likelihood that this would happen, not as to Franny, but, rather, as to Amy and her sisters. Therefore, the judge clearly concluded that the balance of harms weighed in favor of termination because defendant had failed to demonstrate any likelihood that he could address the causes of the harm in the foreseeable future, and permanency could not be delayed. The evidence in this regard was clear and convincing.

We therefore deny defendant's motion to remand the matter to the trial judge for reconsideration. Defendant is free to seek relief pursuant to Rule 4:50-1. See, e.g., J.N.H., supra, 172 N.J. at 472-75 (holding Rule 4:50-1 is applicable to motions seeking relief from final orders terminating parental rights).

Affirmed.


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