November 4, 2011
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF K.G., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0079-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2011
Before Judges Carchman, Fisher and Baxter.
Defendant N.G. appeals from a judgment of the Family Part terminating her parental rights to her child, K.G., born August 27, 2007, and granting guardianship of the child to plaintiff Division of Youth and Family Services (DYFS). Among her arguments, defendant asserts that, under the facts presented, DYFS never had "a legal right" to the care and custody of K.G. From this premise, defendant claims DYFS did not have the authority to seek termination. We reject these arguments as without merit and affirm.
These are the relevant facts adduced from the record.
N.G., the mother of three other children who are no longer in her custody, has a long history of drug addiction and criminal behavior. In 1990, she was sentenced to probation for endangering the welfare of a child; that probation eventually terminated. Subsequently, N.G. was sentenced to a four-year term of imprisonment. Also in 1990, she was sentenced for aggravated assault and theft to a term of five years imprisonment.
N.G.'s criminal activity continued, as in 1999, when she pleaded guilty to possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school. She was sentenced to a term of three years in prison with a parole ineligibility period of eighteen months. In March 2003, she pleaded guilty to the same charge and was sentenced to a term of five years with two and a half years of parole ineligibility.
When K.G. was born in 2007, both she and N.G. tested positive for cocaine. At the time of K.G.'s birth, N.G. did not have stable housing and admitted to using cocaine, alcohol, marijuana and tobacco during her pregnancy. K.G. was born prematurely after thirty-four weeks' gestation and spent three days in the Neo-natal Intensive Care Unit after being diagnosed with intrauterine drug exposure, respiratory distress and suspected sepsis.
Following a hospital hold on the child, DYFS filed a complaint for
care and custody of K.G. As a result, the child was placed with J.S.,
a family friend, who has custody of N.G.'s older daughter, M.G., who
is approximately fifteen years old and K.G.'s half-sister.*fn1
J.S. reported that N.G. did not visit K.G. until five days
after the baby was released from the hospital, and N.G.'s subsequent
visits were infrequent and at irregular intervals.
Shortly after K.G.'s birth, N.G. began attending a drug treatment program at Cooper House, where she tested positive for cocaine through mid-September 2007. N.G. was hospitalized in December 2007. That month, N.G. was found to have abused and neglected K.G. because of N.G.'s long history of drug abuse, culminating in K.G.'s testing positive for cocaine at the time of her birth, which condition placed K.G. at a substantial risk of harm.
On December 17, 2007, N.G. was referred to the Robin's Nest Parenting Program to supervise her visits with K.G. The supervised visits between N.G. and K.G. did not begin until March 6, 2008 because N.G. was placed on a waiting list. While waiting for supervised visits to begin with the parenting program, N.G. visited K.G. at J.S.'s home. J.S. reported that after visits from N.G., K.G. would cry and not sleep well. The primary care doctor told J.S. that K.G.'s behavior was likely attributable to the change in environments that occurred when N.G. visited. As stated above, the Robin's Nest supervised visitation program began on March 6, 2008. By June 2008, N.G.'s visits were partially supervised, and the program assisted N.G. in caring for K.G. as well as dealing with N.G.'s finances.
The ensuing reports regarding N.G.'s progress were encouraging. On March 12, 2008, Cooper House reported that N.G. was doing well in the program, had not tested positive for drugs, and had started a GED program. A follow-up report from Cooper House was equally positive. On June 27, N.G. completed GED classes and received her high school diploma. Earlier, on June 16, the court ordered that K.G. be reunified with N.G. prior to the next court date if all parties agreed. Thereafter, N.G. completed the substance abuse treatment program at Cooper House. On July 30, a bonding evaluation between N.G. and K.G. was ordered in contemplation of reunification. Although the evaluator reported that K.G. had separation anxiety from her foster mother, Dr. Richter recommended that reunification continue.
A permanency hearing was held on September 26, and the court ordered that K.G. be returned to N.G. once N.G. found suitable housing. K.G. was reunited with N.G. on October 20, and the case was terminated on January 30, 2009.
The reunification was short-lived, as, on January 15, 2009, the Division received a referral stating that N.G. had left K.G. at the home of J.S. for a few days. The referral source was concerned because N.G. called and asked J.S. to drop K.G. off at the child's maternal grandmother's home. However, the maternal grandmother stated that she did not want K.G. at her home and believed that N.G. was drunk.
On February 9, 2009, DYFS received another referral that N.G. had dropped K.G. off at J.S.'s home and had not returned for her after three days. The source stated that the medication N.G. left for K.G. was insufficient for the amount of time K.G. spent at J.S.'s house. A DYFS worker located N.G., who stated that J.S. knew she was having difficulty obtaining medication.
After missing two scheduled appointments in March 2009, on April 2, N.G. completed a substance abuse evaluation. N.G. denied any alcohol or drug use since 2007, but during the evaluation, she tested positive for cocaine. N.G. was recommended for intensive outpatient treatment and was re-admitted to Cooper House on April 17. N.G. did not attend any treatment sessions and was discharged unsuccessfully on April 24, 2009. Other attempts were made to have N.G. enter substance abuse programs, but they were unsuccessful.
DYFS received another referral on May 31, which reported that N.G. had left K.G. at the source's home, stating that she would be right back, but had not returned. Mutual friends indicated that N.G. was in a crack house. Later that day, DYFS received a call that N.G., who was high, had taken the child.
A DYFS worker went to N.G.'s home and spoke to her. N.G. denied that she had used drugs and did not appear intoxicated.
N.G. allowed the worker to enter the home, and the worker observed K.G., who appeared healthy and happy.
Less than two months later, however, N.G. was arrested while K.G. was at J.S.'s home. N.G. told DYFS that she was in jail for nonpayment of child support and that she did not know when she would be released. DYFS took custody of K.G. and continued her placement with J.S. DYFS then filed a new complaint for custody on July 21, 2009, which was granted.
J.S. notified the caseworker that, although visitation was ordered by the court, N.G. only visited K.G. sporadically after August 2009. DYFS continued to make referrals for N.G. for drug treatment. N.G. attended a re-evalaution in December 2009, but she refused to enter an inpatient program as recommended.
At a permanency hearing in September, the judge ordered that the permanency plan for K.G. change from reunification to termination of N.G.'s parental rights and adoption by J.S.; DYFS was ordered to file a guardianship complaint by October 26, 2009. DYFS filed a complaint for guardianship on October 22, 2009.
On November 16, 2009, a fact-finding hearing was held. The court took judicial notice of the prior fact-finding, held on December 4, 2007, concluding that N.G. had abused or neglected K.G. N.G.'s attorney consented to proceeding in this manner because, the parties agreed, two fact-findings involving the same mother and child would be superfluous. The court also determined that J.K., K.G.'s father, would require a fact-finding hearing. Additionally, N.G. was ordered to comply with inpatient substance abuse treatment.
Another case management evaluation was held on December 4, 2009. N.G. was ordered to comply with substance abuse treatment and urine screens. She was also informed that her visitation with K.G. would be every Monday, and all evaluations were ordered to be scheduled before February 5, 2010, the date of the next proceeding.
Throughout the litigation, N.G.'s visitation with K.G. was sporadic; at most, she visited two times a month. Moreover, when she did visit K.G., J.S. reported that K.G. became very "clingy," to the point that J.S. could not be out of her presence, and K.G. soiled herself, even though she was toilet-trained. In addition, the caseworker observed K.G. in J.S.'s home and noted that K.G. and J.S. had a very good, nurturing relationship.
N.G. completed her substance abuse evaluation on January 14 and admitted to using alcohol and crack cocaine four days earlier. Residential inpatient treatment was again recommended, which N.G. refused.
Dr. Ronald Gruen, Ed. D., conducted a bonding evaluation between K.G. and J.S. on February 8, 2010. He found that K.G. called J.S. "mommy" and that there was a strong psychological bond between the child and J.S. He opined that K.G. would suffer significant emotional harm if she were removed from her foster mother's care. In March, Dr. Gruen conducted a psychological evaluation of N.G. and a bonding evaluation between N.G. and K.G. During the psychological evaluation, N.G. admitted that crack cocaine was her "drug of choice" but told Dr. Gruen that this time would be different from her last attempts to terminate her drug use because she wanted to raise K.G. However, she also admitted to using cocaine a week before the evaluation. Gruen also noted that N.G. "was rather cavalier in her statements, showing no remorse for the emotional, if not physical, damages which she has inflicted on her children." He diagnosed N.G. with a personality disorder with narcissistic and antisocial traits, in addition to her drug dependence. He later opined that her narcissism "means she does what she does for herself first, she counts first, anybody else counts last. And that she's antisocial, which means that she'll do whatever she needs to do to get gratification of her want and needs, including breaking the law." He concluded, "Results of the Psychological Evaluation indicate that [N.G.] is not able to parent satisfactorily, and is unlikely to be [able] to do so for the foreseeable future."
During the bonding evaluation, Dr. Gruen noted that K.G. was not excited to see her mother and had to be directed by her mother to sit on her lap. K.G. referred to N.G. by her nickname, "Neeni," which displeased N.G. N.G. "repeatedly questioned the child until the child responded, 'Mommy.'" N.G. played appropriately with K.G., but the child separated easily from N.G. Dr. Gruen opined that the relationship was one of an acquaintance, with no significant psychological bonding, and that K.G. would not suffer significant emotional harm if the relationship were permanently severed.
At trial, the judge considered the testimony of the Division's caseworker and its expert witness, Dr. Gruen. N.G. was not present and presented no witnesses. The judge subsequently issued a written opinion terminating N.G.'s parental rights to K.G.
In her opinion, Judge Silverman-Katz found by clear and convincing evidence that DYFS had satisfied the four-prong test for termination of parental rights, codified in N.J.S.A. 30:4C-15.1.
As to the first prong, Judge Silverman-Katz stated that "N.G. has been unable to provide [K.G.] with the basic needs of food, clothing, or shelter, and most importantly, as Dr. Gruen testified, the safe parenting of the child. N.G. voluntarily gave up parental responsibilities time and time again and she chose drugs over the life of [K.G.]." In addition, "Dr. Gruen testified that if [K.G.] were placed with N.G., she would be at risk of significant and enduring harm because [N.G.] cannot ensure the child's safety. N.G. is an unfit parent to raise and nurture [K.G.]."
The judge found that DYFS met the second prong because it proved that N.G. was either unable or unwilling to eliminate the harm and make a safe and stable home for the child, and that a delay in permanent placement would add to the harm. The court found that "[t]here has been no evidence supplied to this Court to indicate that N.G. has any viable means of supporting [K.G.] or providing her with a stable home." The court also found that "[a]ny delay in permanent placement would further harm the child, and the harm attributable to the delay in permanency was significant in this Court's decision."
The judge concluded that DYFS met the third prong because the agency made reasonable efforts to provide services, and looked into alternatives to termination of parental rights. The judge observed that, "[t]hroughout the litigation, [DYFS] offered various services to N.G., but her participation wask intermittent" and found that "there are no alternatives to termination of parental rights."
Finally, the court determined that the fourth prong was met because termination of N.G.'s parental rights would not do more harm than good. Based on Dr. Gruen's testimony, the judge found that K.G. would be at risk for suffering significant, serious and enduring harm if she were removed from the care of her foster mother.
This appeal followed.
On appeal, defendant asserts:
I. DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS NECESSARY TO TERMINATE N.G.'S PARENTAL RIGHTS IN ORDER TO PROTECT HER CHILD'S BEST INTERESTS.
A. N.G. Was not Afforded a Hearing nor an Adjudication of the Charges in the Second Complaint for Care and Custody of K.G. to Determine Whether She Abused or Neglected Her Child And Therefore DYFS Never Had the Authority to Seek Termination of Parental Rights Pursuant To N.J.S.A. 30:4C-15(c) Because DYFS Never Had a Legal Right to "Care or Custody" of K.G.
i. DYFS did not properly establish jurisdiction over N.G. and her child, K.G.
ii. The trial court never made a finding of fact on DYFS' second neglect complaint, as required under Title Nine, and therefore never had a legal right to "care or custody" which is required under N.J.S.A. 30:4C-15(c).
B. The Trial Court Improperly Determined that K.G.'s Health and Development Have Been or Will Be Endangered by N.G. and the Judgment Should Be Reversed.
C. DYFS Did Not Prove by Clear and
Convincing Evidence that It Made Reasonable Efforts to Reunite K.G. with N.G., Nor Did the Court Consider Alternatives to Termination.
D. [DYFS] Did Not Prove by Clear and Convincing Evidence that More Harm than Good Would Befall K.G. if N.G.'s Parental Rights Were Terminated.
Initially, we focus our attention on defendant's claim that DYFS did not have a right to "care or custody" of K.G. According to defendant's argument, the absence of such right divests DYFS of jurisdiction to act. We find no merit to the argument.
Specifically, defendant claims that because the trial court did not make an independent finding of abuse and neglect, but rather took judicial notice of the prior abuse and neglect, DYFS had no legal right to care or custody and could not pursue a guardianship action pursuant to N.J.S.A. 30:4C-15(a). DYFS responds that N.G. consented to the trial judge's order placing K.G. in the care and custody of DYFS and that, in any case, this "procedural oddity" is not "plain error" under Rule 2:10-2.
At the fact-finding hearing subsequent to the second removal, which was occasioned by N.G.'s incarceration, the following colloquy occurred:
[DEPUTY ATTORNEY GENERAL]: Your Honor, I can proceed with a fact[-]finding today. If the Court can take judicial notice of a prior finding on [N.G.] . . . .
THE COURT: When was the prior finding to [N.G.]? [LAW GUARDIAN]: I believe it's December 4th, 2007.
THE COURT: Do you have a docket number under which I'd find --[LAW GUARDIAN]: It was under -- it was with [K.G.] as well, Judge. I just want to make sure that that's clear.
THE COURT: Okay. With the same child. [LAW GUARDIAN]: Same child. And the docket number, [DEPUTY ATTORNEY GENERAL] has the entire file with her, so. [DEPUTY ATTORNEY GENERAL]: FN-04-125-08N. THE COURT: Okay. And there was a finding made pursuant to that docket number of Title Nine abuse and neglect? [DEPUTY ATTORNEY GENERAL]: That's correct. THE COURT: Was that by way of trial, or by way of stipulation? [DEPUTY ATTORNEY GENERAL]: It was -- it was by trial.
THE COURT: And it was a preponderance, or a clear and convincing?
[DEPUTY ATTORNEY GENERAL]: It was preponderance.
THE COURT: Okay. [LAW GUARDIAN], any objection? [LAW GUARDIAN]: No, Your Honor.
THE COURT: [DEFENSE ATTORNEY], any objection? [DEFENSE ATTORNEY]: No, Judge.
THE COURT: Okay. [DEFENSE ATTORNEY FOR J.L.], any objection? We're talking about judicial notice of the prior finding against [N.G.] under the 07 docket number. [DEFENSE ATTORNEY FOR J.L.]: No, Judge.
THE COURT: Okay.
THE COURT: And was the -- but here's the question. I'm going to take judicial notice under [N.J.R.E.] 201, which does allow this Court to take judicial notice of prior records and findings of the Court, and find that pursuant to the Docket Number FN-04-125-08, there was a finding of abuse and neglect by [N.G.] against the same child.
And therefore, by the same preponderance of the evidence, that finding will relate in this instant matter.
Defendant's argument is based on the incorrect premise that a Title Nine proceeding, with a finding of abuse and neglect, is a prerequisite for a Title Thirty guardianship hearing. In fact, the proceedings are neither interdependent nor mutually exclusive. As the Supreme Court recently noted:
Although an abuse or neglect proceeding under Title Nine may lead to a guardianship/termination of parental rights proceeding under Title Thirty, see, e.g., N.J.S.A. 30:4C-15(a) (providing that termination of parental rights complaint shall be filed whenever finding of abuse or neglect under Title Nine has been entered); [In re Guardianship of J.N.H., 172 N.J. 440, 452 (2002)], an abuse or neglect finding is not the only means by which to trigger a complaint seeking termination of parental rights. [N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 111-12 (2011).]
Rather, N.J.S.A. 30:4C-15 provides for alternative routes to a guardianship proceeding:
[A] finding of abuse or neglect in an action under Title 9 is only one of five statutory grounds for the termination of parental rights. Indeed, we take judicial notice of the fact that most termination-of-parental-rights cases appealed to this court are based on N.J.S.A. 30:4C-15(c), which provides for termination where "the best interests of any child . . . require that he be placed under guardianship." See also
N.J.S.A. 30:4C-15.1(a) (setting forth the four [prongs of the] statutory test for determining whether termination is in the "best interests of the child"). Therefore, except for a guardianship action under N.J.S.A. 30:4C-15(a) based on a finding of abuse or neglect under Title 9, DYFS may bring an action for the termination of parental rights under any of the other subsections of N.J.S.A. 30:4C-15 without first bringing an action under Title 9.
[N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 259 (App. Div. 2009) (footnote omitted), certif. denied, 201 N.J. 153 (2010).]
In this case, DYFS correctly notes that defendant consented to the adoption of the initial finding of abuse and neglect at the second fact-finding hearing. We observe that it is not clear from the record that the adoption of the December 4, 2007 finding would serve as the entire basis for a new finding of abuse and neglect.
Finally, even if the fact-finding through judicial notice was error, there was no objection. Under the plain error standard, we only reverse if the error "is of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2. Critical to our decision in favor of DYFS in this case is the recognition that in the guardianship proceeding, DYFS established all four prongs required by N.J.S.A. 30:4C-15.1 by clear and convincing evidence. Ultimately, the proofs demonstrated that the termination was in the best interests of K.G. and that the result was just and appropriate.
We focus on the proofs presented to the trial judge in the guardianship proceeding and first address our standard of review.
Generally, we "defer to the trial court's factual findings so long as they are supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 185 (2010). Further, "[b]ecause of the family courts' special jurisdiction and expertise in family matters," including termination actions, "appellate courts should accord deference to family court fact[-]finding." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quotations omitted). We will intervene only when the trial judge's factual findings and legal conclusions are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice." Klumpp v. Borough of Avalon, 202 N.J. 390, 412 (2010) (quotations omitted).
The statutory mandates for the procedures for termination of parental rights and commitment to the guardianship of the Division are set forth in N.J.S.A. 30:4C-15.1(a):
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
"As to the burden of proof" in termination cases, "[t]he correct standard is 'clear and convincing' proof." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 612 (1986).
The first prong requires DYFS to prove by clear and convincing evidence that a child's "safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). DYFS need not "concentrate on a single or isolated harm or past harm as such. Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
"The harm shown 'must be one that threatens the child's health and will likely have continuing deleterious effects on the child.'" N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 610 (App. Div.) (citing K.H.O., supra, 161 N.J. at 352), certif. denied, 192 N.J. 68 (2007). The harm need not be inflicted by the parent personally but may arise from the parent's failure to provide a safe and stable home for the children. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 282 (2007).
The second prong of the termination standard analyzes whether it "is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care."
A.W., supra, 103 N.J. at 607. "[T]he second prong may be met by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse [or] the inability to provide a stable and protective home . . . ."
K.H.O., supra, 161 N.J. at 353.
"Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citing A.W., supra, 103 N.J. at 616 n.14). The Supreme Court has explained that the lack of a permanent safe and stable home constitutes "harm" under the best-interests-of-the-child standard. D.M.H., supra, 161 N.J. at 383.
Here, the trial court's findings are well supported by the record. There is substantial, credible evidence in the record that K.G. was born addicted to cocaine, that N.G. was unable to provide stable housing to K.G. due to her incarceration, and that defendant continued to use drugs. These facts support a finding that K.G.'s "safety, health or development has been . . . endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1).
In addition, N.G. has been and will continue to be unable or unwilling to eliminate the harm facing K.G. Specifically, N.G. has demonstrated that she cannot refrain from using cocaine. Even after reunification with K.G., N.G. was unable to refrain from drug use. In addition to suffering from admitted long-term drug addiction, N.G. has been diagnosed with a personality disorder with narcissistic and antisocial traits. The substantial, credible evidence in the record supports the judge's determination that it was not reasonably foreseeable that N.G. would cease to inflict harm on K.G.
Defendant next argues that because DYFS never consulted N.G. to provide appropriate services, the trial judge erred in finding that reasonable efforts were made to reunite K.G. and N.G. DYFS responds that DYFS provided N.G. with many services, but her episodes of relapse and incarceration permitted no alternative to termination.
The trial judge stated that "[t]hroughout the litigation, the Division offered various services to N.G., but her participation was intermittent." After summarizing the services offered, including Cooper House Recovery Program, the Center for Family Services, New Behavioral Network and Robin's Nest, the court addressed whether kinship legal guardianship (KLG) was appropriate. The judge noted that:
This Court heard credible testimony that the Division explored the KLG option and explained the difference between KLG and adoption to the foster mother. The foster mother felt that KLG would not give K.G. enough permanency, especially given N.G.'s history. The foster mother does not wish to have custody of the child pursuant to a KLG arrangement, but rather, has indicated to the Division, that she wishes to adopt the child. She is firmly committed to adopting K.G. to give her a secure and permanent home.
Granting KLG of K.G. to the foster mother is not an option. Therefore, this Court finds no alternative to termination of parental rights.
N.J.S.A. 30:4C-15.1(a)(3) requires "reasonable efforts [by DYFS] to provide services to help the parent correct the circumstances which led to the child's placement outside the home and [that] the court has considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(c) defines reasonable efforts as:
[a]ttempts 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.
The Supreme Court has held that "'[r]easonable efforts' may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." M.M., supra, 189 N.J. at 281.
The reasonableness of DYFS' efforts is not measured by its success, but rather "against the standard of adequacy in light of all the circumstances of a given case." D.M.H., supra, 161 N.J. at 393. The sufficiency of DYFS' efforts must be evaluated on a case-by-case basis. Ibid.
Here, the record confirms that DYFS offered numerous services to N.G., including psychological evaluations, substance abuse evaluations, substance abuse treatment, parenting classes, family preservation services, visitation services and foster placement. Despite these attempts, N.G. was not able to take full advantage of the services offered, as she relapsed into substance abuse.
In addition, both DYFS and the judge considered alternatives to termination of parental rights. K.G. was twice placed in foster care with J.S., and the judge considered and rejected KLG, as did the DYFS expert, who stated that N.G. "is the kind of person that [sic] would come and go. I don't think that she would be able to create a stable home and environment for this child . . . ." Dr. Gruen also stated that K.G. was "too young" for KLG and should not be kept "in limbo . . . ." DYFS proved this prong by clear and convincing evidence.
Finally, defendant argues that DYFS failed to prove by clear and convincing evidence that termination of N.G.'s parental rights will do more good than harm.
The fourth prong of the termination standard requires that DYFS prove that the termination of parental rights will benefit the child more than it harms the child. N.J.S.A. 30:4C-15.1(a)(4). The Court has recognized that "not all children who are 'freed' from their legal relationship with their parents find the stable and permanent situation that is desired even though this is the implicit promise made by the state when it seeks to terminate the parent-child relationship."
A.W., supra, 103 N.J. at 611 (internal quotations omitted). In other words, "child[ren] deeply need association with a nurturing adult," and courts should "mak[e] provision for a more promising relationship in the child's future." Id. at 610 (original alterations and quotation omitted).
The trial judge stated that N.G. "is unfit to parent and will not be able to care for K.G. in the future." The judge also noted N.G.'s lengthy history of drug abuse, including the fact that even after her reunification with K.G., defendant was not ready and willing to renounce her drug use, as indicated by further positive drug tests. Finally, Dr. Gruen found that K.G. bonded strongly with J.S., that K.G. had not bonded with N.G., and that N.G. suffers from "serious and significant personality disorders that make sacrificing her own needs for those of K.G. difficult." In sum, "if K.G. were removed from her foster mother, she would be at risk of suffering significant and enduring harm."
Here, there is substantial and credible evidence in the record to support the court's conclusion that terminating N.G.'s parental rights will do more good than harm. N.G.'s past behavior fails to demonstrate that she would be able to provide a safe and stable home for K.G. Dr. Gruen's opinion supports the conclusion that returning K.G. to N.G.'s care would cause significant emotional harm.
The record further demonstrates that J.S. has bonded with K.G. and that if K.G. were removed from her care, serious emotional harm would occur. The bonding evaluation established that N.G. was not K.G.'s psychological parent; K.G.'s caretaker, J.S., was her "mommy."
Our careful review of the record leads us to conclude that DYFS established the elements necessary to support the judgment of guardianship and the termination of N.G.'s parental rights by clear and convincing evidence.