October 28, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF S.M. AND J.A., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-70-07.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 4, 2011
Before Judges Payne, Simonelli and Hayden.
Defendant V.M. (fictitiously, Vince) the father of girls S.M. (fictitiously, Sandy) and J.A. (fictitiously, Jaleesa), appeals from orders dated July 7, 2010 appointing N.C. (fictitiously, Nancy) to be the kinship legal guardian of the two girls. On appeal, Vince argues that the judge erred in granting kinship legal guardianship (KLG) because there was no evidence that Vince abused or neglected his children or put them at risk of abuse or neglect; KLG should not have been awarded to Nancy and her husband, R.C. (fictitiously, Ron), because the Division of Youth and Family Services (DYFS) had not recommenced an investigation in 2009 as to whether a paternal great aunt in Maryland was willing and able to assume the care of the children; and that the judge erred in allowing visitation at the discretion of Ron and Nancy, who failed to cooperate with Vince in providing the opportunity for such visitation. We affirm.
The facts of the matter are as follows: Sandy was born prematurely on July 3, 2006 at thirty weeks gestation. Because of concerns regarding her parents' fitness, DYFS sought an order granting it care and supervision of Sandy. An order to show cause was issued on July 31, 2006, which temporarily granted the relief that DYFS sought but permitted Sandy to reside with her mother, C.A. (fictitiously, Connie) upon release from the hospital. On August 10, 2006, the return date of the order to show cause, Sandy was continued under the care and supervision of DYFS, legal and physical custody was granted to Connie, and both Connie and Vince were ordered to obtain psychological evaluations, submit to random urine screenings, and attend domestic violence counseling. At the time, Connie was nineteen years of age and was residing in a battered women's shelter. Because Connie reported that she had been issued a temporary restraining order against Sandy's father as the result of domestic violence, the August order permitted him only to have weekly supervised visitation with his child.
Vince was seventeen years of age at the time of Sandy's birth. He had two other children by other women, who had custody of those children. Vince was expelled from school at the age of sixteen with an eighth-grade education. When Sandy was born, he was unemployed. The report of a mental health evaluation, conducted by psychologist Michael J. Fiore, Ph.D. and social worker Margaret Pittalunga, M.S.W., at the request of DYFS in late August 2006, disclosed that, on July 20, 2006, Vince had punched Connie on the arm, causing a bruise. The incident was reported to the police. He admitted "smacking her in the face" while she was pregnant. Vince also had pending charges as the result of swinging an aluminum baseball bat at a male that he perceived as a rival for Connie's affections, he had pled guilty to sexual assault on a twelve-year-old girl and was awaiting sentencing, and he had three arrests for disorderly conduct (fighting). He had also been charged with robbery and aggravated assault. He was first placed on probation at the age of twelve or thirteen. Based on an interview and test results, the evaluators concluded that [Vince] is a high risk parent for child physical abuse, neglect, and domestic violence. He is immature, impulsive, angry, narcissistic, schizoid, and antisocial. . . . It is recommended that [Vince] continue to be restrained from contact with [Connie] and their child. His visits with [Sandy] should be supervised. Of concern is [Connie's] potential to violate the restraining order due to her desire for a future with [Vince].
Later that year, Vince pled guilty to a charge of third-degree witness tampering, having told a young woman whom he had sexually assaulted that he was a member of the Crips, and that he would "handle" her and her family if she told anyone what had happened. On October 11, 2006, Vince received a sentence of two years of probation on that charge.
An October 13, 2006 letter from DYFS to Vince indicated that he had not attended weekly supervised visitation with Sandy in the period between August 18, 2006 and October 13, 2006. Later, he missed visitation scheduled for October 20 and 27 and for November 3, 2006. Additionally, Vince failed to attend the first session of a parenting skills program that he had been directed to attend, scheduled for October 10, and he had failed to appear at two scheduled substance abuse evaluations.
After thirteen months, during which time Connie had custody of Sandy, on August 1, 2007, Sandy was placed in foster care with Ron and Nancy as the result of repeated violations of the court's order barring unsupervised contact between Vince and Sandy. In October 2007, DYFS investigated placement of Sandy with her maternal aunt in Georgia. However, Georgia officials closed their file in the matter upon being informed by the aunt that the child was being returned to her mother, and that placement was no longer needed.
Between May and October 2007, DYFS's records show nine visits between Vince and Sandy. DYFS had referred Vince to outpatient drug counseling after he told the agency that he had smoked marijuana within the last thirty days. It also referred him to domestic violence counseling, parenting skills classes, and individual counseling. However, Vince was uncooperative, and he did not participate in services. He failed to contact the entity providing domestic violence counseling, never completed the parenting skills program, and never completed an anger management program to which he also had been referred.
On several occasions, Vince threatened or swore at DYFS staff and others. On March 8, 2007, while at the Bergen County Court House, he was requested to give a urine sample by a DYFS worker, and he replied "that he wasn't going to do that shit." When the judge made the same request, Vince told the judge to go "fuck himself." He was ordered to leave the courtroom, and while outside, he told a DYFS worker to get her brother because the next time he saw her he was going to "fuck [her] up." In September, Vince attempted to arrange an unscheduled visitation with Sandy, and when his request was refused, he called DYFS's employees "stupid mother fuckers" and threatened that if he did not see his daughter within twenty-four hours, there was "gonna be a problem for the worker tomorrow." In October, he failed to confirm a visit with Sandy, but nonetheless showed up at the DYFS office. When informed that Sandy was not there because the visit had not been confirmed, Vince told the worker to "go fuck yourself," "jump off a bridge and die" and "suck my dick."
In July 2007, he was arrested, and from November 7, 2007 to December 26, 2007 he was jailed on charges of assault and disorderly conduct. He was arrested again on January 14, 2008 for threatening to kill a stranger.
In May 2008, Vince was jailed on a charge of child endangerment, having locked his two nephews in a closet with an electric heater turned on. On June 5, 2008, he was found to have violated his probation and was sentenced to three years in prison. While in custody, he was disciplined for refusing a housing assignment, fighting, and refusing to obey an order. As of November 16, 2009, he remained in custody and was serving administrative segregation time as the result of his latest disciplinary charge. Vince received visits from Sandy on three occasions while he was imprisoned.
While Vince was in custody, on May 5, 2008, Connie gave birth to another girl, J.A. (fictitiously, Jaleesa). Seeking to keep the child, Connie falsely informed DYFS that the baby had died. However, when DYFS ascertained the truth and that Connie was still regularly seeing Vince, on May 21, 2008, it placed the baby with her sister Sandy in foster care with Ron and Nancy.
In May 2008, DYFS contacted Connie's maternal grandmother in Georgia to determine whether she would adopt the two girls. Although she initially expressed interest in doing so, after discussing the matter with her husband, she declined, citing her age. On June 4, 2008 DYFS met with Connie and two sisters of Vince to discuss custodial arrangements for Sandy and Jaleesa. However, one sister, a North Carolina resident, declined to pursue the necessary license from the state and was ruled out as a possible caretaker. In October 2006, DYFS also considered placing the girls with Vince's great aunt in Maryland. An interstate placement study was initiated on October 30, 2008. However, the aunt withdrew from the process without starting the required pre-service training or completing necessary paperwork. She claimed that Connie was "slated to get her children back."
Vince's other sister, a resident of New Jersey, completed the licensing requirements to qualify her home as an appropriate place for Sandy and Jaleesa. The girls were placed in her custody on May 21, 2009 after two visits with her. However, after four weeks, the sister requested that DYFS take the children back, stating that they were too much for her to handle along with her two biological children. The girls were returned to the custody of Ron and Nancy on June 18, 2009.
On July 5, 2009, an additional psychological evaluation of Vince was conducted on behalf of DYFS by Robert D. Kanen, Psy.D., at the Mountainview Youth Correctional Facility. Dr. Kanen found on the basis of personality testing and an interview that Vince suffered from severe personality problems. He was found to "present with an arrogant sense of self-worth and an inflated opinion of his capacity to function in daily life." He displayed "a rash willingness to risk being caught in lies and deceptions." Additionally, "[i]ndependence of other people and personal obligations" were likely to be viewed by Vince as favorable characteristics. He was found to be "irresponsible and undependable." He had never adequately cared for his children, and he had "no realistic plans to care for them in the future." Vince was also found to be "untroubled by conscience" and to have "an over-inflated ego." He was found to be "at high risk for ongoing family and legal difficulties." In conclusion, the doctor found:
[Vince] shows evidence of severe parenting deficits. He is not mentally ill and is functioning in the lower average range of intelligence but has long standing and severe personality problems, characterized by extreme self-centeredness, indifference to the rights and needs of others, engaging in repeated behaviors that are grounds for arrest, failure to plan ahead, and chronic irresponsibility through repeated failure to honor parental obligations and sustain employment. These are enduring and pervasive personality traits that underlie his emotional and interpersonal difficulties. These traits are highly resistant to change and indicate a poor prognosis.
In Dr. Kanen's opinion, returning Vince's children to his care would expose them to an unnecessary risk of harm.
On October 31, 2009, Dr. Kanen performed an evaluation of the bond between Vince and his two girls at the correctional facility, concluding that the girls had either a severely impaired attachment to him or no attachment at all. Additionally, the doctor concluded these children would be traumatized from being parented by [Vince]. [Vince] appears to lack a basic understanding of the children and is unable to meet their basic physical and emotional needs. He is not capable of providing them with a permanent, safe, and secure home.
By the time the girls moved back into Ron and Nancy's care, it was clear that Sandy suffered from health and developmental problems. She had been born with a heart murmur that likely would require surgery. By the age of three, she had been diagnosed as suffering from asthma. Additionally, it was determined that she was developmentally delayed. When three years of age, Sandy was deemed eligible for special education and placed in a preschool program for handicapped children. Both girls showed significant signs of regression following their return from placement with Vince's sister.
A permanency hearing was conducted on August 12, 2008, at which time the judge approved DYFS's plan for termination of parental rights followed by adoption. At that time, Ron and Nancy had already been foster parents on ten to fifteen occasions over the past seven years. In addition to their two natural children, they had adopted two of their foster children when it was unequivocally demonstrated either that the children wished adoption to occur or that the parents surrendered their rights. Ron is a civil engineer; Nancy runs a daycare center at the couple's home. They have been together for twenty-two years.
Although Ron and Nancy were willing to take permanent responsibility for the girls and to keep them in their home through college, they were unwilling to adopt them, determining that the girls' natural parents should not be removed from the children's lives, but should instead retain visitation rights. Additionally, Nancy expressed concern that the girls would not be able to get financial aid for their education if they were adopted, and neither she nor her husband could afford college tuition.
Nonetheless, bonding evaluations suggested that both girls were bonded to their foster parents, and that separation would cause a significant loss. An assessment of the bond between the girls and both Connie and Nancy was conducted on December 2, 2008, at which time Jaleesa was seven months of age and Sandy was approximately two-and-one-half years of age. At that time, it was determined that Jaleesa exhibited no significant behavioral differences when in the company of the two women. Nonetheless, because she had daily interaction with her foster mother from shortly after birth, the examiner concluded that Jaleesa would be impacted by the loss, and that the impact would increase as the time to achieve a permanent plan lengthened. Sandy, who had been in placement since she was one year old, was found to have made significant developmental progress while under Nancy's care. Additionally it was determined that Sandy regarded Nancy as her psychological parent, but that her attachment was not completely secure, since she regressed and expressed separation anxiety when taken for short periods from her foster home. Although Sandy was found to have an attachment to Connie, the child did not regard her biological mother as her psychological parent. The loss caused by separation from Nancy would be harder to mitigate than Jaleesa's loss.
Further bonding evaluations were conducted by Elizabeth Smith, Psy.D. in September 2009, resulting in a report dated October 15, 2009. Dr. Smith found that bonding evaluations with both Nancy and Connie had gone well, although Connie was obviously less experienced in parenting. She concluded that although the girls exhibited a warm attachment to Connie, they regarded Nancy as their psychological parent and were thriving in her care. Turning to the question of whether the girls should be placed in select home adoption or remain with Nancy and Ron, Dr. Smith opined that neither [Sandy] nor [Jaleesa] should be moved to a third party. Taking them from the only stable and loving home they have known and taking the chance of placing them with a new caregiver at this late date would place them at an unacceptable degree of risk for short term and long term mental health problems. Rather it is in the best interests for the Division and [Nancy] to come to some reasonable agreement about their permanency.
Additionally, because of concerns by DYFS that KLG was "not a sufficient permanent plan for the two girls," on October 16, 2009, an evaluation was conducted at the Center for Evaluation and Counseling by social worker Heather Diamond "to determine whether or not it would be detrimental to [Sandy] and [Jaleesa] to be removed from [Nancy's] care." After noting the girls' regressive behaviors following their return to Nancy after placement with their paternal aunt, including Jaleesa's temper tantrums and Sandy's significant regression in her toilet training and smearing of her feces on the wall, Diamond concluded:
If [Sandy] were to be removed from [Nancy's] care again, the regression is likely to be even worse and she would be at-risk for attachment difficulties. [Nancy] is [Sandy] and [Jaleesa's] psychological parent. They are emotionally attached to her and look to her to meet their needs. [Sandy] and [Jaleesa] would experience a psychological injury and loss if removed from her care.
They should be viewed as vulnerable children whose attachment needs should be managed with the goal of maximizing their experience of stability, consistency, and security.
Further loss for both children should be avoided.
Because of a continuing concern arising from Ron and Nancy's unwillingness to adopt Sandy and Jaleesa, Dr. Fiore was retained to "assess the nature of their commitment to providing permanent care to [Sandy] and [Jaleesa]." The evaluation took place on February 15, 2010. Following an extended interview with both Nancy and Ron, Dr. Fiore concluded that the couple were willing to make a permanent commitment to the two girls. Their unwillingness to adopt stemmed from a concern that the girls' parents were young, and their desire not to sever the parental relationship when a possibility remained that the parents would be able to overcome their present lack of fitness and when the girls were not of an age to express their own personal preferences. Dr. Fiore concluded:
Given the attachment needs of [Sandy] and [Jaleesa], it would be in their best [interest] to remain with [Nancy] and [Ron]. These children have already been disrupted from this placement with harmful impact. They are at a critical developmental phase in which secure attachments are essential to prevent long term psychological and interpersonal difficulties. While adoption creates a more permanent plan than Kinship Legal Guardianship, the children's emotional needs, [Nancy and Ron's] willingness to make a long term commitment to these children, and their history of having made such commitments to a foster child, make this plan more beneficial than a removal of the children for placement in an adoptive home.
Testimony regarding KLG was provided by Ellen Kelly, DYFS's Adoption Director and one of its adoption policymakers. She testified that as a matter of policy, DYFS generally prefers adoption as the plan for young children, as it places children in the strongest, most stable, and most permanent position; part of a family both emotionally and legally. The agency normally does not place children as young as Sandy and Jaleesa in KLGs, preferring the permanency of adoption to a guardianship that may later be disrupted by the natural parents. More typically, Kelly testified, DYFS would accept KLG as a permanent plan for close relatives, like grandparents, who feel uncomfortable legally adopting their kin. Further, according to Kelly, DYFS disfavors long-term foster care - an arrangement that it removed from its permanency options some years ago because of poor outcome statistics for children brought up under such arrangements. While KLG is an acceptable permanency plan for relatives of the children, KLG with a foster family can amount merely to long-term foster care by another name.
Kelly stated that, in light of these considerations, she was consulted regarding the advisability of KLG in this case.
After consulting with various people, including members of the legal department and Dr. Fiore, Kelly concluded that KLG was appropriate in this case. She testified:
We were persuaded that the children should not be removed from [Nancy and Ron] at this point, with - at all. The . . . children should not be removed from [them], based on factors that I think Dr. Fiore probably testified to this morning. What he shared with us is, given the children's age and stage of development, the fact that they're in that point of life where attachment is really critical, the fragility of the older child, and the discomfort, if not trauma that they experienced in trying to move once before, fairly recently, that he felt that we should not be asking these children to move again.
The second thing that he spoke about was the fact that this particular foster family has a track record of having cared for children both through adoption, but also through foster care through college and, you know, allowing these children to - to return to their home.
So, taking those two things together, the - the foster family's track record and Dr. Fiore's feeling that it would be too difficult for these children to move, we were persuaded that they should stay . . . where they are.
At the commencement of trial, DYFS sought termination of parental rights followed by adoption. However, as the trial progressed, it determined not to oppose KLG, the remedy that the other parties, including the girls' parents, favored as providing the best resolution of the matter. Nonetheless, DYFS adhered to the position that termination of parental rights should precede the entry of an order granting KLG. Counsel for the parents and the law guardian opposed termination.
In a written opinion, the judge declined to order termination, reasoning that such a step would render the girls orphans and determining that, because there was an alternative to termination of parental rights, and because evidence suggested that termination of parental rights would do more harm than good, DYFS had failed to present clear and convincing evidence that termination was in the girls' best interest as required under the third and fourth prongs of the best interest standard established by N.J.S.A. 30:4C-15.1. However, after evaluating the evidence, the judge concluded that "[t]here is certainly no question whether the children should remain with the current caregivers. The three experts that have testified all concluded that the children would suffer enduring harm if removed from [Nancy]." Finding the conditions of N.J.S.A. 3B:12A-6 to have been met, the judge granted KLG to her pursuant to the KLG Act, N.J.S.A. 3B:12A-1 to -7. Despite his consent to KLG, this appeal by Vince followed. Connie has not appealed.
On appeal, Vince argues that the judge erred in granting KLG because there was no evidence that he abused or neglected his children or placed them at risk. He also argues that the judge erred in granting KLG to Nancy and Ron because DYFS had failed to determine whether there was a legal relative in Maryland who was willing and able to assume care of the girls. A third argument regarding visitation has been resolved at the trial level by entry of a consent order. We reject Vince's remaining two arguments.
We have held that KLG pursuant to the KLG Act constitutes a permanent placement option in appropriate circumstances, as specified in the statute. Div. of Youth & Family Servs. v. D.H., 398 N.J. Super. 333, 335 (App. Div. 2008). Although kinship legal guardians are typically relatives of the child at issue, the statute does not require a biological relationship to exist. See N.J.S.A. 3B:12A-2 (defining "Caregiver" to include a resource family parent or "foster" parent and defining "Kinship legal guardian" to be "a caregiver who is willing to assume care of a child due to parental incapacity, with the intent to raise the child to adulthood, and who is appointed the kinship legal guardian of the child by the court . . . .").
In making a determination to appoint a person as a kinship legal guardian, the judge is directed to consider twelve criteria set forth in N.J.S.A. 3B:12A-6a, all of which were addressed by the judge in his opinion. In addition, in paragraph 6d, the statute states in relevant part:
The court shall appoint the caregiver as a kinship legal guardian if, based upon clear and convincing evidence, the court finds that:
(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child[.]
The statute also requires clear and convincing proof that the parent's inability is unlikely to change in the foreseeable future; that reasonable efforts have been undertaken by DYFS to reunify the child with the birth parents, but that they were unsuccessful; that adoption is neither feasible nor likely; and that KLG is in the child's best interests. N.J.S.A. 3B:12A-6d(2)-(4).
The requirements of the KLG Act thus to an extent mirror those set forth in the best interests standard of N.J.S.A. 30:4C-15.1, applicable in a termination of parental rights context. Because of this close correspondence between the two statutes, we have held that precedent applicable in a termination context is also applicable to KLG cases. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 212 n.5 (App. Div.), certif. denied, 192 N.J. 293 (2007). Nonetheless, it must be recognized that the first prong of N.J.S.A. 3B:12A-6d differs from the first prong of N.J.S.A. 30:4C-15.1, which provides that termination shall be granted upon clear and convincing evidence, among other things, that "(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship."
Focusing on the first prong of N.J.S.A. 3B:12A-6d, Vince argues that no evidence was presented that he abused or neglected his children or put them at risk of abuse and neglect. In support of this position, he argues that DYFS's involvement with the children arose because Vince called the hospital to express his concern that Connie had been smoking marijuana, and in the investigation that followed, Connie claimed without substantiation that Vince had committed acts of domestic violence against her. As a consequence, Vince was permitted only supervised visitation with Sandy, and when he violated that condition, DYFS took custody of the child.
He argues further that the only abuse committed by him was to slap Connie on the face on one occasion while she was pregnant, and he notes a police report of a bruise on Connie's arm. He claims that no evidence substantiated Connie's claims that Vince hit her repeatedly on her legs and arms, and argues that Connie had a history of lying. Additionally, he notes that the temporary restraining order was obtained by Connie only because her mother complained of threatening calls to Connie from Vince's mother,*fn1 not because of domestic violence, and that Connie dismissed her claim before obtaining a permanent restraining order. Vince also seeks to minimize his disruptive conduct before DYFS employees and in court, stating that he "always ended up walking away and never became physical." He claims, as well, that he is attached to the children, and that evidence of a lack of bond with the girls at the July 2009 bonding evaluation resulted from the compressed time that he had to re-establish a relationship with children that he had not seen in six months.
We regard Vince's view of the evidence presented at trial to be myopic and conclude that the judge's determination that the first prong of paragraph 6d had been met to have ample support in the record. The judge determined in that regard:
The biological father has been unavailable for a significant period of the children's lives, he has been incarcerated for numerous arrests, was placed on probation and violated his probation. He has a history of assaultive behavior and anger management problems. He was ordered to have no contact with the children other than through supervised visitation. As previously indicated, he was found to be a high-risk parent for abuse and neglect. In fact, he has never performed regular or expected functions of care and support for either of his children.
Our review of the judge's factual findings in this guardianship context is limited to determining whether they have adequate, substantial and credible evidential support in the record. S.F., supra, 392 N.J. Super. at 210 (citations omitted). "'Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility' because the trial court has the benefit of seeing and hearing the witnesses and determining whether they are believable." Ibid. (quoting Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004)).
The evidence at trial indicated that, because Vince was subject to a temporary restraining order at the time of Sandy's birth, he was permitted only supervised visitation with the child until such time as his psychological evaluation could occur. Dr. Fiore and social worker Margaret Pittalunga performed that evaluation in late August 2006, and at its conclusion determined that Vince was at high risk for committing child physical abuse, neglect, and domestic violence. He was found to be "immature, impulsive, angry, narcissistic, schizoid, and antisocial," and as a consequence, it was recommended that his visits with Sandy be supervised. Thereafter, Vince failed to visit Sandy between August and November 2006, and he was noncompliant with the various services offered to him. He deliberately defied the order requiring supervised visitation and, as a result of his conduct, physical custody of Sandy was taken by DYFS on August 1, 2007. Vince was jailed from November 7 to December 26, 2007 on charges of assault and disorderly conduct. He was jailed again in May 2008 on charges of child endangerment and, on June 5, 2008, he was found to have violated his probation and given a three-year prison sentence. He remained in prison at the time of Jaleesa's birth on May 5, 2008. He committed disciplinary infractions while in custody, leading to an extension of his sentence to late 2009 or early 2010. At the time of his final evaluation by Dr. Fiore, defendant had never cared for the girls and had no plan for the care of his children. His psychological condition showed no improvement. His conduct and verbal interactions with the girls in the course of a bonding evaluation conducted in 2009 demonstrated that he was ill suited to parent his children.
Sandy, in particular, failed to respond to her father and actively sought to avoid him.
While the right of a parent to enjoy a relationship with his child is constitutionally protected, a parent's rights are not absolute. C.S., supra, 367 N.J. Super. at 109-10 (citations omitted). "Children have their own rights, including the right to a permanent, safe and stable placement." Id. at 111. As we have acknowledged, as the result of the passage of the Federal Adoption and Safe Families Act of 1997, 42 U.S.C.A. §§ 301, 671(a)(16), 675(5)(A)(ii), the "emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Ibid. (citations omitted).
Here, there was ample psychological evidence that Vince suffered from emotional disabilities that rendered him at high risk of inflicting physical or emotional harm on his two girls, and as a result, unsupervised visitation was barred. "'[A] psychiatric disability can render a parent incapable of caring for his or her children.'" Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 585 (App. Div. 2010) (citing Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 94 (App. Div. 2008)).
Further, there was no proof of an improvement in Vince's psychological condition or of efforts by him through counseling or otherwise to restore himself to a mental state that would render him fit to care for his children. Rather, the evidence revealed instead that Vince embarked upon a course of criminal conduct that led to his jailing and imprisonment through a major portion of the life of Sandy and all of Jaleesa's life. "A parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (citing In re Guardianship of K.H.O., 161 N.J. 337, 352-54 (1999)). Vince's imprisonment clearly resulted in a withdrawal of any nurture or support that he might otherwise have offered to Sandy and Jaleesa. In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993); Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 243 (App. Div. 2010), certif. denied sub nom. Dept. of Children & Family Servs. v. K.G., 205 N.J. 519 (2011). As a consequence, we affirm the trial judge's determination that the first prong of N.J.S.A. 3B:12A-6d was met.
We reject the contention that DYFS should have made further inquiries as to whether the paternal great aunt in Maryland wished to obtain custody of the girls after their failed placement in May 2009 with Vince's sister. At that time, both children were exhibiting signs of regression. Sandy's incontinence and smearing of feces on the wall was particularly alarming. The psychologists and other professionals who evaluated the girls following that placement were uniform in their opinion that the girls should not be removed from their foster home again. Under these circumstances, even if the great aunt had been willing to take custody of the girls, it would not have been in their best interest to be taken from the home of people whom they regarded as psychological parents and introduced into the home of an out-of-state stranger. We thus find no error on this basis in the judge's award of KLG.