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Division of Youth and Family Services v. N.O


November 2, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-69-08.

Per curiam.



Submitted: September 21, 2011

Before Judges Axelrad, Sapp-Peterson and Ostrer.

N.O. appeals from an April 22, 2010 judgment of the Family Part terminating her parental rights to her daughter R.C.C., then five-and-one-half years old, and awarding guardianship to the Division of Youth and Family Services (DYFS) for the purposes of effectuating the child's adoption.*fn1 On appeal, N.O. argues that DYFS did not prove by clear and convincing evidence the four statutory prongs required to establish that her daughter's best interests require severance of her parental ties. We note the Law Guardian supports termination of N.O.'s parental ties to R.C.C.

After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006). We affirm.


We need not describe in detail the many facts the trial court considered in its determination. We instead provide a brief summary of the cogent facts we considered in concluding the judge's findings were well supported by the record.

The following testimony and evidence were presented during the multi-day trial that commenced before Judge James M. Blaney in 2009 and continued, on non-consecutive days, until its conclusion in March 2010. DYFS presented the factual testimony of its caseworker, Mary Turash, Adolescent Unit employee, Stacey Weigandt, and Adoption Unit employee, Lisa Quackenbush, as well as R.C.C.'s paternal grandmother F.C. DYFS also presented the expert testimony of Chester Sigafoos, Ph.D., who performed a psychological evaluation of N.O. and her four sons, and Alan J. Lee, Psy.D., who performed a psychological evaluation of N.O. and conducted bonding evaluations of R.C.C. with both N.O. and with her current caregivers. DYFS additionally presented the testimony of Vicki Rahenkamp, a licensed clinical professional counselor for Children's Home Society of New Jersey, who worked with R.C.C. in her foster home. The Law Guardian presented the factual testimony of R.C.C.'s foster mother C.C., and the expert testimony of William Coffey, Psy.D., who also performed a psychological evaluation of N.O. and bonding evaluations of R.C.C. with both N.O. and with her caregivers.

N.O. testified on her own behalf. She also presented the factual testimony of Edward Zupkus, a therapist at Family Transition Support Services, and the expert testimony of Roger T. Raftery, Ph.D., who performed a psychological evaluation of N.O. and a bonding evaluation of R.C.C. with N.O.

N.O., who was in her mid-forties at the time of trial, reported a history of tragic events pre-dating her involvement with DYFS, not all of which could be corroborated by the evaluators or the agency. N.O. reported that she had been seriously injured in a car accident as a teenager and had subsequent car accidents that caused her to have neck and back problems. She reported to Dr. Lee that between the ages of thirteen and seventeen, she gave birth to five children, including one set of twins, who were adopted by relatives in Ireland, and claimed all of the children were "products of rape."

N.O. then gave birth to four sons, J.O. in 1990, D.O. in 1992, C.O. in 1993, and T.C. in 1999. R.C.C. was born on November 16, 2004.

DYFS had been involved with N.O. and her children since September 1995. On March 9, 2004, N.O.'s four minor sons were removed from her care following a DYFS complaint and order to show cause setting forth concerns that N.O. was not treating her own mental health needs, was failing to adequately supervise her children, and was not meeting the special needs of her children. In particular, the complaint noted that thirteen-year-old J.O. was suicidal and homicidal and had been involuntarily committed to a psychiatric hospital, eleven-year-old D.O. reported that J.O. had molested him and his ten-year-old brother, and N.O. had tested positive for opiates and failed to comply with psychological and substance abuse evaluations. DYFS was granted temporary custody of the four children. On November 18, 2004, two days after R.C.C.'s birth, DYFS amended its complaint to include R.C.C., and DYFS was granted temporary custody of the infant that day.

On April 28, 2005, Judge Barbara A. Villano entered findings after reviewing the family history and mental health evaluations of the family that had been completed after the children's removal from N.O.'s care. She questioned the veracity of many of the historical events reported by N.O., cited her observations of N.O.'s mental instability when she was in court, found it disturbing that N.O. described the disclosed sexual molestation between J.O. and D.O. as "mere curiosity," and concluded that N.O. possessed little, if any, protective instincts over her children, perhaps because of her own traumatic childhood experiences. Nevertheless, the court concluded that DYFS had failed to provide any expert evidence to validate its position that N.O. presented a risk to her children and thus reluctantly reunified the family. J.O., however, remained in a residential treatment facility.

DYFS engaged Family Preservation Services (FPS) to assist in the reunification. FPS, however, terminated its services on June 27, 2006, because the family was not benefiting from the program, and N.O. was using extremes in disciplining the children despite her knowledge of proper parenting skills and discipline. DYFS also retained Dr. Raftery to provide sexual abuse counseling for C.O. and D.O., ensured that Ocean Mental Health Services provided the family with medication monitoring, and arranged for substance abuse evaluations for both N.O. and R.C. DYFS additionally provided N.O. with homemaker services, childcare resources for R.C.C., websites for mental health support services, Harbor House Outreach Services, and other family support groups.

On May 31, 2006, DYFS responded to a referral, which turned out to be unfounded, but which resulted in the caseworker's observing that the boys were always fighting and the home environment was chaotic. N.O. agreed to send R.C.C. to F.C., the paternal grandmother's house, where she stayed for about a month. F.C. testified at trial that she feared for R.C.C.'s safety in N.O.'s home because the boys were out of control, hit each other, and punched holes in the walls. She further testified that N.O. was only able to control the boys' behavior to a point and thus confined R.C.C. to a bedroom with a gate across the doorway. According to F.C., N.O. told her she did this because she was afraid of the boys hurting their sister.

By December 2006, DYFS had serious concerns about N.O.'s ability to properly care for her children. N.O. had displayed erratic behavior, such as mood changes, delusions, and made statements such as she had twenty-seven pregnancies and was born with cervical cancer. She had also left a morphine patch on the table that could have easily been reached by R.C.C. In addition, N.O. continually refused to take R.C.C. to daycare, and the social worker noted that R.C.C.'s speech was further delayed because of the commotion in the house.

On August 20, 2007, DYFS received protective custody of the children. R.C.C. was initially placed with her paternal grandparents, but they were unable to care for her long term because of their age and medical issues. On September 4, 2007, at almost three years of age, at N.O.'s request, R.C.C. was placed with her godparents, the "C" family, with whom she has remained and bonded. C.C. testified about her and her husband's love for, and intention to adopt, the child.

Dr. Sigafoos testified about the psychological evaluation he performed in November 2007, diagnosing N.O. with post-traumatic stress disorder, bi-polar disorder, borderline personality disorder and obsessive compulsive personality features. The psychologist found N.O. to have a limited parenting capacity because of all her various psychopathologies. He opined that in order for N.O. to become fit, she would require at least a year or two of psychological services.

Dr. Lee testified about the psychological evaluations he performed of N.O. in February and October 2009, arriving at the same diagnosis of personality disorders reached by Dr. Sigafoos. He also related that N.O. had reported a long history of notable mood instabilities, periods of depression, mild manic episodes, numerous suicide attempts, and multiple psychiatric hospitalizations and treatments. Dr. Lee was of the impression that N.O.'s difficulties with anger management and control over her emotions, as well as her pattern of instability, had continued into her adulthood. These ongoing problems adversely affected her overall ability to appropriately parent and provide stability for her children. Although Dr. Lee acknowledged that N.O. had availed herself of some of the services provided by DYFS, including dialectical behavioral therapy, he was not satisfied she could be an independent caretaker, particularly to five-year-old R.C.C.

Dr. Lee also testified about his observations during the bonding evaluations, noting that N.O. and her daughter had affection and a positive interaction but it was not indicative of a bond. The psychologist found the bond between R.C.C. and her mother to be insecure and ambivalent, and concluded there would be a relatively low risk of harm to the child if her relationship to her mother were permanently ended. In contrast, Dr. Lee found a significant and positive psychological attachment and bond between R.C.C. and each of her foster parents, and concluded the child would suffer severe, enduring and irreparable harm if their relationship were severed.

Dr. Coffey testified that N.O. was inconsistent in her rendition of her history and found she "sees life in a very idiosyncratic way that does not necessarily reflect objective reality." He diagnosed N.O. as having an anti-social personality disorder and severe characterological disturbance that was not treatable either with medications or interventions. According to the expert, N.O. lacked insight and her prognosis for change was very poor. Dr. Coffey also found N.O. minimized the disturbances in her children, who other than R.C.C., all had severe emotional and behavioral problems, and found it unrealistic to believe she could raise R.C.C. in a healthy manner in her family. He concluded that to put R.C.C. in N.O.'s care would expose her to harm and would likely cause the child to experience the emotional and behavioral problems experienced by her older siblings.

Dr. Coffey observed R.C.C. interacting with the "C" family and found them to be very gentle with the child and comfortable with one another in displaying affection, talking and setting limits in the office. Accordingly, the expert opined that R.C.C. had bonded with Mr. and Mrs. "C" as if they were her natural parents. In contrast, he observed that N.O. was somewhat reluctant to play with her daughter and spent much of the time playing on her cell phone. Moreover, although they played together, N.O. did not reciprocate in a manner that would suggest bonding with R.C.C. or age-appropriate interactions, and did not look to foster any learning opportunities. He concluded that the interaction between N.O. and her daughter lacked the spontaneity and laughter characteristic of the child's interaction with her foster family. Dr. Coffey opined that because of the healthy bond between R.C.C. and her current caregivers, and R.C.C.'s lack of attachment with N.O., the child would likely not suffer enduring harm if her mother's parental rights were terminated.

N.O.'s expert, Dr. Raftery, did not diagnose her with any personality disorders, although he conceded in cross-examination that N.O. had psychological difficulties, including bi-polar disorder and chronic personality issues. He also found N.O.'s history "problematic," noting the serious mental health problems and sexual abuse of R.C.C.'s older siblings, and problems with N.O.'s ability to monitor and supervise her children. Although Dr. Raftery was of the opinion R.C.C. and her older brother T.C. had a sibling bond and severing that relationship may harm her, he found it "less clear" that she or her brother would be harmed by severing the parental relationship. He was of the opinion that N.O. was likely overwhelmed by the task of raising five children with special problems but acknowledged that N.O. was not capable of independently raising R.C.C. at the time of trial because of her psychological difficulties. Dr. Raftery was of the opinion it would be best if there were some other permanent planning that would allow R.C.C. to stay with another family while maintaining her relationship with N.O.

N.O. testified about her version of why her children were removed from her care, and about her relationship and visitation with R.C.C. She testified about her older children and their placements, said nineteen-year-old J.O. and sixteen-year-old C.O. were currently living with her, and believed R.C.C. could be returned to a healthy environment. She did not think having either boy at home would endanger R.C.C. in any way. N.O. expressed a desire for seventeen-year-old D.O. to be returned home from his residential placement, although she conceded his presence might endanger R.C.C. N.O. acknowledged her sons had all suffered from severe emotional disturbances and conditions and there was a history of suicide attempts, self-mutilation and sexual abuse, but she testified she believed the boys were not dangerous because their symptoms were under control.

Based on this record and after observing the lay and expert witnesses, examining the exhibits entered into evidence, and hearing arguments of counsel, Judge Blaney concluded the best interests of R.C.C. required severance of N.O.'s parental ties. In a detailed oral decision of April 14, 2010, the judge recited the factual and procedural history of the case, made findings of fact and credibility assessments, noted the applicable law, and found DYFS had established by clear and convincing evidence the four-prong test for termination of parental rights as set forth in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-10 (1986), and codified in N.J.S.A. 30:4C-15.1(a).

The determination was memorialized in a judgment of guardianship. This appeal ensued.


We begin by noting some basic principles. The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We also have a limited scope of review of the Family Part's factual findings. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). In reviewing the factual findings and conclusions of a trial court, we are obliged to accord deference to the trial judge's credibility determinations and the judge's "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. A.R.G., supra, 361 N.J. Super. at 78 (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) and Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). We rely upon the trial court's acceptance of the credibility of the expert testimony and the court's fact-findings based thereon, as it is in a better position to evaluate the witness' credibility, qualifications, and the weight to be accorded to the expert's testimony. Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 22 (1992).

We are not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation and quotation marks omitted). Additionally, because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding and the conclusions which flow logically from those findings of fact. Cesare, supra, 154 N.J. at 412-13; M.M., supra, 189 N.J. at 279. Reversal is required only in those circumstances in which the trial court's findings were "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (citation and quotation marks omitted). Applying this standard, we discern ample evidence in the record supporting the judge's conclusion that R.C.C.'s best interests required termination of N.O.'s parental rights.

The applicable principles are well settled. "Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382 (App. Div. l998) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982)), vacated on other grounds, 163 N.J. 158 (2000). "The Federal and State Constitutions protect the inviolability of the family unit." W.P. & M.P., supra, 308 N.J. Super. at 382 (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972)). However, the government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State, as parens patriae, may sever the parent-child relationship to protect the child from serious physical and emotional injury. W.P. & M.P., supra, 308 N.J. Super. at 382.

When the child's biological parent resists termination of parental rights, it is the court's function to decide whether the parent can raise the child without causing harm. J.C., supra, 129 N.J. at 10. The cornerstone of our inquiry is not whether the parent is fit, but whether the parent can become fit to assume the parental role in time to meet the child's needs. Ibid. (citing A.W., supra, 103 N.J. at 607). "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." J.C., supra, 129 N.J. at 10. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." W.P. & M.P., supra, 308 N.J. Super. at 383 (alteration in original) (quoting J.C., supra, 129 N.J. at 10).

The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383. The State Constitution and N.J.S.A. 30:4C-15(c) and 15.1(a) require satisfaction of the "best interests of the child" test by clear and convincing evidence before termination of parental rights can occur. See A.W., supra, 103 N.J. at 612; In re Guardianship of Jordan, 336 N.J. Super. 270, 274 (App. Div. 2001). Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1(a) requires DYFS to prove:

(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 [formerly referred to as "foster"] parents would cause serious and enduring emotional or psychological harm to the child;

(3) The [D]ivision 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.

These criteria are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. Ibid. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).


Our examination of the record discloses all four prongs of the statutory test have been met by clear and convincing evidence. The first prong involves an inquiry into whether there has been an "endanger[ing] of the child's health and development resulting from the parental relationship[,]" and whether there will be future harm to the child's safety, health, or development if the parental relationship is not terminated. K.H.O., supra, 161 N.J. at 348. The focus of the inquiry is not necessarily on a "single or isolated harm or past harm," but rather on "the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid.

The facts, as found by the trial judge from credible evidence, reveal by clear and convincing evidence that N.O. endangered R.C.C.'s health and safety by subjecting her to physical danger because of the sexual molestation between her older siblings, the aggressive and destructive physical activities in N.O.'s house, N.O.'s minimization of the danger to R.C.C., and the lack of proper protection. The court also found that "severe mental health issues plagued[d] the life of [N.O.] and remain[ed] with no appreciable improvement[,]" N.O. admitted endangering R.C.C. by abusing prescription drugs while caring for her, and allowing prohibited sibling visits and lying about those visits.

The second prong contemplates the determination of parental unfitness. It considers the parent's failure to provide even minimal parenting to his or her children. D.M.H., supra, 161 N.J. at 378-79. DYFS must prove the harm is likely to continue as a direct result of the parent's unwillingness or inability to eliminate the harm that had endangered the child's health and development, or the parent has failed to provide a "safe and stable home for the child" and a "delay in securing permanency" will further harm the child. K.H.O., supra, 161 N.J. at 348-49.

Judge Blaney found by clear and convincing evidence based on the testimony of all the experts who testified at trial that N.O.'s prognosis for change was poor, despite the plethora of services DYFS provided to her from 1995 through 2010. Even N.O.'s expert agreed that N.O.'s mental and emotional issues remained, and as of trial she was still unable to overcome the harm caused to R.C.C. and independently parent the five-year-old in a safe and stable environment.

On appeal, N.O. does not advance a specific argument that DYFS failed to prove either of these prongs, focusing her arguments instead on the third and forth prongs. She does claim, however, in a footnote, that the fact that N.O. sought help for her children, there was never any finding of abuse or neglect, and N.O. had custody of sixteen-year-old C.O. through R.C.C.'s placement and trial, undermine the finding that DYFS successfully demonstrated, by clear and convincing evidence, the first two statutory prongs.

We disagree. There does not need to be actual physical harm to a child to endanger his or her health and development; the potential for harm is sufficient. See A.W., supra, 103 N.J. at 616; W.P. & M.P., supra, 308 N.J. Super. at 386. "[T]he mental health of the child and its best interests psychologically must always be considered." A.W., supra, 103 N.J. at 605 (quoting In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977)). Moreover, there is a real risk that R.C.C. would be harmed if returned to N.O.'s care. It is admirable that N.O. had sought to protect her young daughter from the violence of her older brothers by locking her in her bedroom. Yet it is also clear from the record that N.O. did not have a firm grasp on the seriousness and continued extent of her sons' problems, so she would not be an effective watchdog over her daughter. Thus, reunifying R.C.C. with N.O. to live with her older siblings, when N.O. cannot adequately control the siblings' severe psychological and emotional disturbances, violent and destructive conduct, and sexual abuse, would surely endanger R.C.C.

DYFS may also establish the second prong by showing "that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of [his or] her bond with foster parents." K.H.O., supra, 161 N.J. at 363. The Court has also recognized that the first and second prongs are "related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." D.M.H., supra, 161 N.J. at 379.

There was clear, convincing testimony from all the experts that R.C.C. had a strong, loving bond and relationship with her caregivers and godparents, the "C" family, whom she viewed as her psychological parents. As of the date of the judgment, R.C.C. had been living with them for almost half of her life, was thriving, and the family wished to adopt her. Although N.O. and her daughter had some attachment, the experts agreed that it was nowhere near the bond the child had with the "C" family. Moreover, there was ample evidence that removal of R.C.C. from her current placement would cause a serious and enduring harm to the child.

The third element of the statutory test "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" are defined in N.J.S.A. 30:4C-15.1(c) as including:

(1) consultation and cooperation with the parent in developing a plan for appropriate services; (2) providing services to the family 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.

An evaluation of efforts undertaken by DYFS to reunite a particular family must be done on an individualized basis "with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." D.M.H., supra, 161 N.J. at 390. DYFS' efforts are not measured by their success. Id. at 393.

The record also amply supports the court's finding that DYFS made reasonable efforts and attempts to provide services to N.O. and her family up through the end of trial. In fact, as Judge Blaney noted in his decision, at the conclusion of testimony in August 2009, he determined that N.O. "could not be trusted with the parental care of R.C.[C.] but felt more services should be offered and other avenues explored before termination was ordered." Accordingly, the court directed N.O. to attend an updated psychological evaluation with Dr. Lee, along with a bonding evaluation with her daughter. Following his October 8, 2009 evaluation, Dr. Lee found that N.O. continued to suffer from the same maladaptive personality and character traits and psychological and psychiatric disorders he had previously observed. He recommended permanency planning for R.C.C. rather than reunification with N.O. because of N.O.'s inability to care for the minor child. Moreover, at the court's direction, the Law Guardian arranged for a psychological evaluation of N.O. and comparative bonding evaluations by Dr. Coffey in December 2009. N.O. also retained her own expert, Dr. Raftery, to conduct a psychological evaluation of her and a bonding evaluation of her with R.C.C.

After completion of the updated evaluations and having given N.O. every benefit of the doubt, trial commenced and concluded in March 2010. All three experts testified that N.O. remained in counseling but that it did not appreciably improve her parenting ability. The court did consider alternatives to terminating N.O.'s parental rights under the third prong and found that DYFS had made reasonable efforts to explore such alternatives. The paternal grandparents were not viable alternatives because of their age and health and, in fact, DYFS had placed R.C.C. with the "C" family at N.O.'s behest.

N.O. argues as a fatal deficiency that DYFS did not explore the possibility of kinship legal guardianship (KLG) with the "C" family, who only first heard of this option through the Law Guardian in the middle of trial the evening before C.C. was to testify. N.O. also asserts as legal error the court's failure to perform a KLG analysis as part of its guardianship ruling. We are not persuaded by N.O.'s argument.

"[T]he Legislature has authorized kinship legal guardianship as an alternative to termination of parental rights in cases where adoption is neither feasible nor likely because the child is in the care of a relative." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 579 (App. Div. 2011) (citing N.J.S.A. 3B:12A-1(b), -6(d)(3)). However, "kinship legal guardianship is not an option when relatives are willing to adopt." Id. at 580 (citing N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512 (2004)).

Judge Blaney expressly found DYFS explored the KLG option. The record is clear that Dr. Coffey rejected KLG as an option because of the potential conflict between N.O. and the "C" family, the harm it would cause R.C.C. during her formative years, and the danger caused by exposure to her siblings. Moreover, C.C. testified that if N.O.'s parental rights were terminated she was both willing to, and preferred to, adopt R.C.C. rather than participate in a KLG arrangement. Accordingly, KLG was not a viable alternative to termination of N.O.'s parental rights in this case.

Lastly, the statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). DYFS must show that the termination of parental rights will not do more harm than good. 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. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4)." Id. at 363.

There is substantial basis in the record for the judge's finding that the evidence strongly pointed towards termination rather than reunification. The judge considered the totality of the record and evidence presented over the multi-day trial. He balanced the harm R.C.C. would face if she were returned to the care of N.O. against the harm R.C.C. would face if N.O.'s parental rights were terminated and R.C.C. were adopted by her caregivers. The judge relied, in large part, on the experts' opinions that N.O.'s prognosis for change was poor, that R.C.C. would suffer significant and irreparable harm if she were removed from the loving, thriving and stable home she had been living in for half of her life, and that the "C" family could help her adapt to the limited consequences of losing her mother. Judge Blaney also found compelling the testimony from Rahenkamp, R.C.C.'s therapist, who worked with her in late 2009, and reported the problems that the child had after visits with her mother and the issues of separation anxiety as to where she would live. Rahenkamp opined that continuing to maintain contact with N.O. would not be in R.C.C.'s best interest. Judge Blaney appropriately concluded, based on the totality of the evidence, that it would not do more harm than good to terminate N.O.'s parental rights to free R.C.C. for adoption by her caregivers.

R.C.C. had been with the "C" family since September 5, 2007, when she was just under three years old. She is thriving in their care. As of the conclusion of trial in March 2010, N.O. was still not in a position to independently care for R.C.C., which was an undisputed fact even recognized by N.O.'s expert. It is unclear when, if ever, N.O. would be able to care for her daughter. See K.H.O., supra, 161 N.J. at 358 (noting there are "limits on the amount of time a parent may have to correct conditions at home in anticipation of reunification"). R.C.C. has clearly bonded with her caregivers who have become psychological parents to her. As Judge Blaney appropriately found after hearing the lay and expert testimony, separating R.C.C. from the "C" family would cause serious and enduring emotional and psychological harm, while adoption by them would provide her with permanency in a stable, loving and nurturing home.

We have no doubt N.O. loves her daughter and honestly believes she is ready to care for her. However, we are convinced the record supports the trial judge's finding that N.O. is unable to provide a safe, stable and permanent home that her young daughter so desperately needs at this point in her life. As we concluded in In re Guardianship of A.R.G., 318 N.J. Super. 323, 330 (App. Div.), certif. denied, 162 N.J. 127 (1999), where there is substantial credible evidence in the record to support termination of parental rights, there is no reason to delay permanent resolution. A child cannot afford to wait until such time as his parent might possibly be able to provide a safe, secure and nurturing environment for him. The trial court properly concluded that termination of parental rights will not do more harm than good to R.C.C. as it will free her for adoption by her current caregivers, who have served as her psychological parents for half of her life and who can provide permanency and stability to her.


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